Bernieres and Anor & Dhopal and Anor [2015] FamCA 736 (9 September 2015)

Last Updated: 18 September 2015

FAMILY COURT OF AUSTRALIA

FAMILY LAW – CHILDREN – overseas gestational surrogacy arrangement – where the surrogacy arrangement is commercial as opposed to altruistic – where the surrogate mother has no genetic link with the child – where consideration is given to the best practice principles determined in Ellison and Anor & Karnchanit [2012] FamCA 602 – where issues relating to exploitation, coercion or duress are considered – where it is reasonable to consider that the process was transparent and is credible.



FAMILY LAW – CHILDREN – parenting orders – where the court makes an order for equal shared parental responsibility of the child – where the best interests of the child are considered – where it is accepted that the surrogate mother and her husband have no interest or intention to seek a relationship with the child – where consideration is given to the process and in particular the purported contracted relationship between the applicants and the respondents.



FAMILY LAW – PARENTAGE – where both applicants seek a declaration of parentage under s 69VA of the Family Law Act 1975 – where the principal submission of the applicants is that the declaration should be made notwithstanding that the first applicant is not the biological progenitor of the child – where it is found that a declaration of parentage is not a parenting order – where consideration is given to whether the power exists to make an order for a declaration of parentage – where the general definition of parent is considered – where it is found that the court’s power to make findings about parentage is not a stand-alone power but a power that can assist the court if the parentage of a child is in issue in proceedings – where the applicants are not able to gain any assistance from the Victoria legislation – where consideration is given to whether a superior court has inherent power to grant a declaration – where there was no need invoke the provisions associate with parentage testing orders – where consideration is given to “child of the marriage” – where there is no ambiguity to the interpretation of a “child of the marriage” and therefore it is not necessary to consider Article 3.2 of the United Nations Convention on the Rights of the Child – where consideration is given to the consequence of a biological connection – where a declaration of parentage is not made.

Family Law Council, Report on Parentage and the Family Law Act (December 2013)



Millbank, J. ‘Resolving the Dilemma of Legal Parentage for Australians Engaged in International Surrogacy’, Australian Journal of Family Law, vol 27, 2013, at 135

REPRESENTATION

ORDERS

(1) That Ms Bernieres and Mr Bernieres have equal shared parental responsibility for the care, welfare and development of Q born ... 2014 (“Q”).

(2) That the child live with the applicants.

(3) That pursuant to section 65DA(2) and section 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders.

(4) That all proceedings be removed from the pending list of cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bernieres and Anor & Dhopal and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FILE NUMBER: MLC 4167 of 2014

First Applicant

Mr Bernieres

Second Applicant

AND

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By Initiating Application filed 15 May 2014 (“the application”) Ms Bernieres (“the first applicant”) and Mr Bernieres (“the second applicant”) seek parenting orders and a declaration of parentage in relation to Q born in 2014 (“Q”).
2. Whilst the application names Ms Dhopal (“the birth mother”) as the first respondent and Mr Kesai (“the birth mother’s husband”) as the second respondent, they have not filed a response to the application nor do they seek any orders and by implication support the orders sought by the applicant.
3. The first applicant was born in 1970 and is engaged in home duties. In her affidavit filed 20 October 2014 she states that whilst her general health is good, she suffers from poor egg quality and low egg reserve. Notwithstanding significant enquiry and endeavour, the first applicant was not able to or was not likely to conceive either naturally or via IVF treatment.
4. The first and second applicants were married in 2004 in Melbourne. The parties intend that Melbourne will be their home.
5. It was determined that the applicants would undertake an international surrogacy arrangement whereby sperm donated by the second applicant would be used to fertilise an ovum donated from an anonymous donor. Fertilisation was successful and the embryo was transferred to the surrogate or birth mother in Country T on or about 14 August 2013.
6. Following successful fertilisation and implantation, the child Q was born in 2014.
7. The orders sought by the applicants arise from the successful completion of an international commercial surrogacy arrangement.

ORDERS SOUGHT

8. The applicants seek the following orders:
   • (1) That [the applicants] both have parental responsibility in relation to the long term and day to day care, welfare and development of [Q].
   • (2) That [Q] lives with the applicants.
9. Whilst not self-evident from the orders sought in the application, at paragraph 29 of the second applicant’s affidavit filed 20 October 2014 he seeks the following:-

[29] [The first applicant] and I seek leave of the court to amend our Initiating Application to seek a declaration of parentage on my part pursuant to section 69VA Family Law Act, and leave to apply for a step-parent adoption pursuant to section 60G Family Law Act. If the Declaration of Parentage and leave to apply for a step-parent adoption is granted, then we intend to apply to the County Court of Victoria for a step-parent adoption in order that [the first applicant] may then become a legal parent of [Q] thereby formalising our parent/child relationship with her.

10. That order is supported by the first applicant.
11. The applicants rely upon a Statement of Issues document in support of the orders sought. That document is directed to a submission that would see a declaration of parentage under s 69VA of the Act being granted to the non-biological party namely, the first applicant.
12. I propose to consider not just the orders sought in the application but also the proposed amendment to include a declaration in favour of each of the applicants.

DOCUMENTS RELIED UPON

13. The applicants rely upon the following documents:
    • Initiating Application filed 15 May 2014.
    • Affidavit of the first applicant filed 20 October 2014.
    • Affidavit of the second applicant filed 20 October 2014.
    • Affidavit of Ms Dhopal (surrogate mother) filed 15 May 2014.
    • Affidavit of Mr Kesai (husband of the birth mother) filed 15 May 2014.
    • Affidavit of Mr R (process server) filed 2 July 2015.
    • Affidavit of Mr S (translator) filed 2 July 2015.
14. As already referred to, the applicants rely upon a Statement of Issues document tendered at the hearing.
15. There has been a relatively truncated history to the proceedings. On 30 January 2015 a Registrar ordered that the application be struck out with a right of reinstatement upon the applicant confirming that the proceedings were ready to proceed to a judicial determination. The difficulty was the lack of evidence that the application and affidavits of the applicants had been provided to the birth mother and her husband in a translated format. The proceedings were eventually reinstated and were listed for final determination before me on 29 July 2015. On that occasion there was no appearance by the applicants or the surrogate mother and her husband. There was an expectation that I would hear and determine the application to finality. I was not prepared to do so and considered it unsatisfactory that the applicants were not in attendance. The proceedings were adjourned for further hearing to 20 August 2015 but were ultimately heard on 12 August 2015. On that occasion the applicants were in attendance.
16. I am mindful of the “best practice principles” as determined by Ryan J in Ellison and Anor & Karnchanit [2012] FamCA 602; (2012) 48 Fam LR 33. Her Honour had the advantage of submissions of the Australian Human Rights Commission (“AHRC”) and an Independent Children’s Lawyer (“ICL”). The concern of the court was to acknowledge the complexity of surrogacy cases and the potential lack of transparency as to the arrangements that are entered into which require consideration to be given to the birth mother to ensure that she (and her partner if relevant) have not been the subject of exploitation, coercion or duress. Ryan J was of the strong view that the birth mother’s consent must be both free and informed. Her Honour considered that for all surrogacy cases there should be a high level of rigor imposed by the court as a safeguard to ensuring as best as may be possible the veracity of the birth mother, her partner, the child and the applicants.
17. To properly address and satisfy the degree of certainty required, the following steps and requirements are set out at [135 to 139] inclusive.
18. A summary of those steps are as follows:
    • (a) The appointment of an ICL.
    • (b) Affidavit evidence of the birth mother and if relevant her partner setting out their personal circumstances, the circumstances leading to the surrogacy agreement, the surrogacy procedure and the arrangements following the birth of the child.
    • (c) Independent evidence as to the identification of the child which would include the surrogacy contract or agreement, a certified copy of the child’s birth certificate and if necessary appropriate evidence of translation, parentage testing in accordance with the regulations and evidence of Australian citizenship if same has been granted.
    • (d) Evidence with respect to the surrogate birth mother to establish that the mother understood the legal issues, had been afforded counselling and was able to provide informed and competent consent.
    • (e) The preparation of a family report setting out the nature of the child’s relationship with the applicants and evidence to assist the court in determining their parenting capacity and their commitment to the long-term care of the child together with evidence of their preparedness to accommodate and promote a connection with the child’s birth culture.
    • (f) Finally and if necessary evidence of the “legal regime” in the overseas jurisdiction.
19. In the circumstances of this case, I do not consider it necessary to require the appointment of an ICL or that there should be a report prepared by a family consultant.
20. There is a certain consequence arising from the very fact that Q has been in the care of the applicants since 25 April 2014. I am also of the view that the circumstances of the parties enables me to find that the current care of the child is of a high level and there would be little assistance in the circumstances of this case that could be provided by an ICL. Similarly, I do not consider a family report would provide any additional or other evidence in circumstance where Q was released into the care of the applicants eight days after her birth.
21. As identified, affidavits have been filed on behalf of the birth mother and her husband. Those documents were sworn on 30 April 2014. Obviously they are in the English language. The affidavits of Mr R and Mr S were required by the court because the birth mother and her husband do not speak English and converse and understand Country T. Their affidavits confirm that at the time they either swore or affirmed the affidavits relied upon, they were translated into Country T, each of them read the Country T translation and purportedly understood its content and then the English version was read back to the applicants in Country T. Whilst it is not possible to be certain as to the providence of affidavit material presented in this form, it is reasonable to consider that the process is transparent and is credible notwithstanding that the court will never have the advantage of hearing evidence directly from the birth mother or her partner.
22. The affidavit of the translator confirms that he was retained to assist in the surrogacy arrangement and that he translated from English into Country T the Initiating Application, the affidavits of the applicants, the consent orders and the affidavits of the surrogate mother and her husband. What is not expressed in the affidavit is when the translation of the relevant documents took place. That is a significant issue in the sense that the affidavits of the surrogate mother and her husband were sworn on 30 April 2014 but the Initiating Application signed by the applicants on 5 May 2014 and filed on 15 May 2014. The affidavit does not indicate when various documents were ultimately translated for the benefit of the surrogate mother and her husband.
23. To some extent the affidavit of the process server assists in that it confirms that both the English and Country T translated versions were served on the surrogate mother and her husband at the office of the surrogacy facilitator.
24. It is a relevant observation that whilst the affidavits of the surrogate mother and her husband were sworn on 30 April 2014, a translated copy of the relevant application and affidavit material was not filed until well after the applicants had taken possession of Q. There is nothing to evidence the extent to which the surrogacy agreement and other related documents have been translated to assist in the better understanding of the surrogacy arrangements by the surrogate mother and her husband.

THE COMMERCIAL SURROGACY ARRANGEMENT

25. The surrogacy arrangement under consideration can be described as “gestational surrogacy”. The surrogate mother has no genetic link with the child. In this case, the ovum or egg is from an anonymous donor. The sperm can be from a donor but in this case from the second applicant. The genetic relationship is therefore only as between Q and the second applicant.
26. The concept and attitude towards surrogacy, in particular when it is not altruistic surrogacy evokes strong emotion. The following remarks from Pru Goward, a member of the NSW parliament giving consideration to the Surrogacy Bill 2010 (NSW) commented in relation to extra-territorial surrogacy in the following emotive terms:-

Women are not cows; they are not animals and their job is not to bear children for money because other people want children. If it is good enough to ensure that Australian women cannot be exploited commercially for this purpose, out of respect for women around the world – particularly the vulnerable women of Asia and other countries where commercial surrogacy flourishes - we should be particularly mindful that if we do not support this amendment, effectively we are saying that there is one rule for our women and another rule for women in poor countries. That is not good enough. Whilst this parliament does not have a leading role in international relations and affairs, it should, as much as is able, uphold Australian values, which must mean respect for all and the right of all to live lives free of exploitation. Voting the right way will reflect our commitment to women in those poor countries and reinforce their rights as human beings.

27. Whilst such statements represent a clearly personal position, nonetheless some of the strong sentiment expressed has resonance in the best practice principles as considered by her Honour in Ellison and Anor & Karnchanit. Moreover, it enlivens the need to give close consideration to the circumstances in which a commercial international surrogacy is undertaken and the application of Part VII of the Family Law Act 1975 (Cth) (“the Act”) to the proceedings.
28. The applicants determined upon an IVF Clinic in Country T to consider surrogacy as a means by which they could become parents. I accept that the parties have pursued a range of options to assist in the conception of a child, but without success.
29. The parties considered that the particular clinic had an appropriate reputation and it was not a coincidence that ultimately a clinic in Country T was selected given the Country T heritage of the first applicant.
30. The surrogacy arrangement was entered into by the applicants on 13 August 2013.
31. The surrogacy agreement signed by all parties in Annexure “AB2” to the affidavit of the first applicant. It confirms that the applicants are the “intended mother” and “intended father” with the respondents being referred to as the surrogate mother (“birth mother”) and her husband (“the confirming party”).
32. It is suggested in the third recital that the surrogate mother and the confirming party approached the intended parents (the applicants) once they ascertained of their desire to receive a child conceived by the placement of an embryo obtained by the insemination of an anonymous donor egg and the second applicant’s sperm.
33. The agreement acknowledges that the surrogate mother provides her full and informed consent and that she will agree never to claim any right or entitlement in respect of the child in the event of a successful birth.
34. It could not be said however that the surrogacy agreement is a benign document. It requires the surrogate mother to conduct herself in a certain way and seeks to remove from her any separate or independent decision as to the course and conduct of her pregnancy.
35. The agreement provides for the following:-

3.1.10 In the event that the foetus (or foetuses) carried by the Surrogate Mother for the intended parents, as per the conditions set out in this agreement, has been determined by the treating medical practitioner to be physiologically, genetically or chromosomally abnormal, the decision to terminate the pregnancy or to not terminate the pregnancy, is to be made by the Intended Parents in consultation with Attending Physician strictly in accordance with the prevailing laws of Country T relating to termination of pregnancy. In such case, the Surrogate Mother, agrees to terminate the pregnancy.

36. Accordingly, it is an agreement very much directed to the specific goal of obtaining a “healthy” child, consideration being the payment of an agreed sum together with expenses.
37. Following the child’s birth, the second applicant underwent a DNA test in 2014 in Melbourne with the results being lodged with the Australian High Commission. In 2014, Q also underwent a DNA test and when the results of her sample were matched with those of the second applicant, the relative chance of paternity namely, that the second applicant is the father of Q, was 99.995 per cent.
38. The genetic proof as to biological connection was required before application could be made for a Certificate of Citizenship by Descent for Q to be issued. Approval was given by the Department of Immigration and Border Protection on 9 May 2014, a passport was issued for Q and the birth mother gave her consent to the child travelling internationally.

EVIDENCE OF BIRTH MOTHER AND HER HUSBAND

39. The evidence of the respondents is as set out in the affidavit material relied upon.
40. The affidavits confirm that the respondents received legal advice as to their rights and obligations under the agreement and that the advice was given in Country T with an appropriate translation.
41. It was the intention of the surrogate mother and her husband that following the birth of Q she would be released into the care of the applicants. The birth mother had no intention of retaining the care and custody of the child to the extent that the agreement provided for compensation to be paid, the respondents confirm that they received all that they expected.
42. Ultimately there is nothing to suggest that the respondents were ill-informed, ill-advised or under any coercion or duress.
43. The obvious caveat is that notwithstanding the apparent veracity of the documents provided, the court can never be certain as to the circumstances of the respondents in cases involving international surrogacy.
44. It is also an unfortunate aspect of the arrangement that the use of anonymous donor egg or ovum has not been explained and it is a necessary consequence of the arrangement and procedure that Q will never have the advantage of ascertaining any information of the donor family.

ISSUES FOR DETERMINATION

45. By reference to the Statement of Issues document, the principal submission of the applicants is that a declaration of parentage should be made in their favour notwithstanding that the first applicant is not the biological progenitor of Q.
46. In support of the submission, the applicants principally rely upon s 69VA of the Act. There is an assumption in the general thrust of the argument that it is axiomatic that the second applicant will be entitled to a declaration arising from the biological connection, but that the focus and complexity of the legislative matrix dealing with parentage focusses on the first applicant.
47. It is argued that if the court determines that s 69VA would not support a declaration in favour of the first applicant, the power to do so may well be found under s 67ZC of the Act.
48. Whilst not argued, a further relevant consideration is whether there is an emphasis in Pt VII of the Act that focusses upon a biological connection to the effect that “parent” equates with a child’s biological parent. Is there something in the Act which would promote a special relationship with a child namely, that of a parent, simply because of the biological connection unless specifically excluded, or is more required.
49. It is necessary therefore to determine whether the second applicant is a parent and if so, whether that can be extended to include the first applicant.
50. A second consideration is that notwithstanding a finding that a party is a parent for the purposes of the Act, whether the power exists to make an order for a declaration of parentage.
51. Following a determination of whether the applicants are parents under the Act, the parenting issues need to be considered.

IS A DECLARATION OF PARENTAGE A PARENTING ORDER

52. In Brianna & Brianna [2010] FamCAFC 97; (2010) FLC 93-437 the Full Court was asked to consider whether the trial judge had erred in failing to apply the provisions of s 60CA in determining whether a court faced with the question of parentage should order a parentage testing order.
53. Section 69W of the Act provides:
    • (1) If the parentage of a child is a question in issue in proceedings under this Act the court may make an order (“a parentage testing order”) requiring a parentage testing procedure to be carried out on a person mentioned in subsection (3) for the purpose of obtaining information to assist in determining the parentage of a child.
    • (2) A court may make a parentage testing order:
      • (a) on its own initiative; or
      • (b) on the application of:
        • (i) a party to the proceedings; or
        • (ii) an independent children’s lawyer representing the child’s interests under an order made under section 68L;
    • (3) A parentage testing order may be made in relation to:
      • (a) the child; or
    • (b) a person known to be the mother of the child; or
      • (c) any other person, if the court is of the opinion that, if a parentage testing procedure were carried out in relation to the person, the information that could be obtained might assist in determining the parentage of the child.

(4) A parentage testing order may be made subject to terms and conditions.

(5) This section does not affect the generality of section 69V.

54. In the Marriage of Lee & Tse [2005] FamCA 77; (2005) 33 Fam LR 167 the Full Court held:

[29] The court’s power to make an order for parentage testing is clearly subject to the parentage of the child being “a question in issue” in proceedings under the Act. To satisfy this threshold question, the authorities suggest that the applicant must overcome two hurdles. The first, parentage must be relevant to the nature of the proceedings. In Duroux v Martin [1993] FamCA 125; (1993) 17 Fam LR 130; the Full Court observed (at Fam LR 134):

...[A] court must first be satisfied that the parentage of a child is an issue in proceedings under the Family Law Act. The proceedings, which are a necessary precondition, may, for example, involve the matter of child maintenance, custody or access in which the question of parentage is an issue.

55. Accordingly, a parentage testing order is not made upon the simple request by a party. Whilst there must be evidence that the parentage of a child is in issue, there is still a discretion under s 69W of the Act.
56. That discretion had been historically considered to be discharged by having regard to the best interests of the child as the paramount consideration.
57. In Brianna (supra) the court said at paragraph [77]:

In (above) the Full Court, whilst approving most of Butler’s J comments, found his Honour was in error in holding that the principle to be applied is that the welfare of the child is paramount. The Full Court said at Fam R 136; FLC 80,407:

In relation to this statement it should be noted that s 64(1)(a) of the Family Law Act provides that the welfare of a child is the paramount consideration only in cases involving custody, guardianship, welfare or access. It is clearly not paramount in proceedings for child maintenance such as were before Butler J and are presently before the court. However, as was said in Chandra & Chandra (unreported) Barblett DCJ, Finn & Joske JJ said:

In all proceedings, especially in the Family Court, the welfare of a child, if relevant, is a factor but except as provided in s 64 not a paramount factor.

58. In Tryon & Clutterbuck (No 2) [2009] FamCAFC 176; (2009) FLC 93-412 Finn J referred to the legislative history and case law in relation to s 69VA and noted that:

...the precise circumstances and manner in which a declaration of parentage can, or should, be made are, in my view, somewhat unclear given the language of section 69VA itself.

59. Amendments to the Family Law Act in 2012 made it clear that a declaration of parentage is not a parenting order. See Schedule 2 Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 which made amendments to s 64B by the inclusion of the following:

However, a declaration or order under Subdivision E of Division 12 is not a parenting order.

60. It is a reasonable summary that notwithstanding that a parentage testing order is now clearly not a parenting order, the exercise of the discretion under s 69W is to have regard to the best interests of the child as an “essential factor” and at least “one of the matters to be considered” but not necessarily the paramount consideration.

PARENTS

61. There is no general definition of “parent” within the Act. Section 4(1) reads:

parent, when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child.

62. It could not be said that the definition of the word “parent” is helpfully defined.
63. In Groth v Banks (2013) 49 Fam LR 510 Cronin J considered the relevant authorities in respect of the definition of the term “parent” and considered that it should be given an ordinary dictionary meaning.
64. In Hunt v Minister for Immigration and Ethnic Affairs [1993] FCA 116; (1993) 113 ALR 509 Gummow J (as he then was) accepted the ordinary meaning of the word “parent” as being “a person who has begotten or borne a child”. Further, that the extension of the meaning of the word “parent” to include adoptive and step parents expands the class or category but not to the exclusion of biological parents.
65. Similarly, the Full Court in Donnell v Dovey [2010] FamCAFC 15; (2010) 42 Fam LR 559 considered that “parent” referred to both the adoptive parent but also the biological parent.
66. In Re Patrick [2002] FamCA 193; (2002) 28 Fam LR 579, Guest J was required to consider whether a known sperm donor was a parent for the purposes of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act). The known donor provided his sperm to a lesbian couple. It was conceded that whilst the donor was registered as the father on the birth certificates of the children, he took no active role in the children’s lives. His Honour by virtue of s 26 of the Assessment Act considered the only person liable to pay an assessment was a parent as defined. The biological parents of a child are treated in law as the parents of a child. However, that position changes if the child has been born as a result of an artificial conception procedure. Section 5 of the Assessment Act excludes donors of genetic material where a child is born by means of an artificial insemination procedure.
67. Section 60HB of the Act considers the position of children born under surrogacy agreements.

Section 60HB(1)

(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 of more persons is a parent of the 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 Circuit Court Rules.

68. “Prescribed Laws” are to be determined by reference to reg 12CAA of the Family Law Regulations 1984 which provide that for the purposes of s 60HB(1) the following laws are prescribed:
    • (1) Status of Children’s Act 1974 (Vic), section 22.
    • (2) Surrogacy Act 2010 (Qld), section 22.
    • (3) Surrogacy Act 2008 (WA), section 21.
    • (4) Parentage Act 2004 (ACT), section 26.
    • (5) Family Relationships Act 1975 (SA), section 10HB.
    • (6) Surrogacy Act 2010 (NSW), section 12.
    • (7) Surrogacy Act 2012 (Tas), section 16.
69. For the purposes of these proceedings, the relevant legislation is the Status of Children’s Act 1974 (Vic) (Status of Children’s Act)
70. Section 20 of the Status of Children’s Act provides for the commissioning parents as defined as “the person or persons who entered into the surrogacy arrangement for a woman to carry the child on behalf of the person or persons” may apply to a court for a substitute parentage order if the child was conceived as a result of a procedure carried out in Victoria and the commissioning parents lived in Victoria at the time of making the application.
71. Section 22 of the Status of Children’s Act provides:

The court may make substitute parentage order in favour of the commissioning parents if it is satisfied:

(a) that making the order is in the best interests of the child; and

(b) if the surrogacy arrangement was commissioned with the assistance of a registered ART provider, that the Patient Review Panel approved the surrogacy arrangement before the arrangement was entered into; and

(c) that the child was living with the commissioning parents at the time the application was made; and

(d) the surrogate mother and, if her partner is a party to the arrangement, her partner have not received any material benefit or advantage from the surrogacy arrangement; and

(e) that the surrogate mother freely consents to the making of the order.

72. Demonstrably, the applicants are not able to gain any assistance from the relevant Victorian legislation. The surrogacy arrangement is clearly commercial as opposed to altruistic, was not commissioned with the assistance of a registered ART provider and overarchingly, and the procedure was not carried out in Victoria.
73. Section 60HB does not apply in the circumstances of this case.

DOES SECTION 69VA OF THE ACT PROVIDE A POWER FOR MAKING A DECLARATION.

74. Section 69VA states:

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.

75. The applicants argue that biological evidence is not required for the court to issue a declaration of parentage under s 69VA. It is argued that a declaration may be issued in circumstances where the court has received evidence as a result of an order under s 69V namely:

If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order requiring any person to give such evidence as is material to the question.

and that s 69VA merely requires the court to receive evidence before issuing a declaration of parentage.

76. Section 69VA was enacted by the Family Law Amendment Bill 1999 to enable the court to make a declaration of parentage for the purposes of all laws of the Commonwealth, however, I do not consider that s 69VA is the stand alone power but rather requires “parentage” of a child to be in issue in proceedings in respect to another matter.
77. The construct of subdivision E in respect of parentage evidence appears sequential and provides with some clarity the necessary steps to resolve the parentage of a child. The first requirement is that the parent of a child must be in question and if the court considers that it is in the best interests of the child (as at least one of the relevant considerations) then the order that is made is that a parentage testing procedure be carried out. Section 69W(5) does not seek to effect or limit the generality of s 69V. I accept that the focus is to ensure that the court has a wide discretion in relation to the types of orders that can be made in order to determine the parentage of a child in issue. The reference to “receiving evidence” in s 69VA is directed to determining the biological connection and therefore the parentage of a child.
78. Section 69VA is not a stand-alone power but requires parentage of a child to be in issue in proceedings in respect to another matter. The power is limited by the fact that the court can only make a declaration if it finds that a person is a biological progenitor. In McK & K v O [2001] FamCA 990; (2001) FLC 93-089 Mullane J noted in relation to the evidence of parentage:

[s69VA is not a free standing power. It is clearly expressed to be dependent upon there being proceedings before the court in which the parentage of the child is already an issue.

The insertion of section 69VA implies that the parliament considered there was no separate power in the Act at that time to make a declaration of parentage. Section 69VA is the only express power to make a parentage declaration. There is no express power to make such a declaration except in proceedings in which the parentage of the child is already in issue.

79. Use of the power by the Family Court is limited to situations where the application is incidental to the determination of another matter within Commonwealth power. This can created difficulties for the applicants in circumstances where a parent may be seeking a declaration of parentage for the purposes of obtaining a passport for a child that is not “incidental to the determination of any other matter within the legislative powers of the Commonwealth” before the court. In M v H (1993) 17 Fam LR 416 Rolands J referred to Brock v White (unreported) where Coleman J declined to make a declaration of parentage because it was not attached to a separate application.
80. In Ellison and Anor & Karnchanit (supra) the applicant father sought a declaration of parentage in relation to two children who were born as a result of an illegal commercial surrogacy arrangement in Thailand. Ryan J made the declaration of parentage as sought by the parents. In doing so she noted that the concerns about illegality were public policy considerations which she decided were of “less weight” than the best interests of the children, whose welfare would be better served by the people who were raising them who had the full range of legal responsibilities for their care. In the course of her judgment her Honour noted the “potential for long term psychological and emotional harm to the children” if the children did not have a secure home with the only people they knew as parents.
81. In the subsequent decision of Mason & Mason & Anor [2013] FamCA 424 Ryan J declined to make a declaration. The effect of her Honour’s approach was that the parentage of a child born of surrogacy arrangements would be determined by reference to the laws of the relevant State or Territory. The New South Wales legislative equivalent effectively “covers the field” with respect to children born of surrogacy arrangements in effect prohibiting such arrangements. Victoria does not prohibit commercial surrogacy and the Status of Children’s Act is silent with respect to the determination of parentage of children born of commercial surrogacy procedures.
82. Her Honour had cause to reflect upon her decision in Ellison & Anor & Karnchanit and considered that she has now some reservation as to the correctness of what was said in relation to the availability of general parenting presumptions when applied to children born through surrogacy.
83. In G v H [1994] HCA 48; (1994) 181 CLR 387, their Honours Deane, Dawson and Gaudron JJ at [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.

DOES A SUPERIOR COURT HAVE INHERENT POWER TO GRANT A DECLARATION

84. The Family Court is a superior court of record. While the court occupies a unique position in relation to inherent powers, its jurisdiction is statutorily limited. The court has no power to make declaratory orders other than those authorised by the Act and its inherent power extends only to administer justice and prevent abuse of process.
85. In Manning & Manning [1978] HCA 4; (1977) 3 Fam LR 11,518 which a wife sought to establish that her missing husband must be presumed to be dead due to his absence for a period of more than seven years, Lindenmayer J considered whether he had the power to make some form of declaration as to the husband’s death. He said on this matter at 11,521 – 11,522:

...I have come to the conclusion that I have no power under the Act to make such a declaration. This court is a creature of the Act, and its powers must be found within the four corners of the Act itself. It has no inherent jurisdiction except possibly that which may fairly be said to be incidental to the exercise of its powers as clearly defined by the Act. The only relevant provision of the Act giving this court jurisdiction to make declarations (other than under section 78 which gives power to make declarations as to property interests only) is section 39 coupled with para (b) of the definition of “matrimonial cause” contained in section 4(1).

86. In Re Sarah [2014] FamCA 208 Macmillan J referred to Smith & Smith (1979) 5 Fam LR 169 in considering whether the court had the power to make the declaration sought. Her Honour considered instances where the declaratory power of the court has been called into question. She quoted Lindenmayer J at [37]:

The court is the creature of the Act and it therefore has only such powers as are expressly granted to it by the Act or as may fairly be regarded as being necessarily incidental to the exercise of those powers.

87. In Ex-parte Green (1984) 156 CLR 185 Gibbs CJ found that the inherent jurisdiction under Family Court does not go beyond protecting its function as a court constituted with the limited jurisdiction afforded by the Act.
88. In a joint decision of Gleeson CJ, Gaudron, McHugh, Gummow and Haine JJ in the case of DJL v The Central Authority (2000) 201 CLR 226, the following appears at pages [240 – 241]:

The Family Court is...not a common law court as were the three common law courts at Westminster. Accordingly, it is “unable to draw upon the well of undefined powers” which were available to those courts as part of their “inherent jurisdiction”. The Family Court is a statutory court, being a Federal Court created by the Parliament within the meaning of section 71 of the Constitution. A court exercising jurisdiction or powers conferred by statute “has powers expressly or by implication conferred by the legislation which govern it” and “is is a matter of statutory construction”; it also has “in addition to such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred.

89. In the same case Kirby J shared the concerns of the majority in employing the phrase “inherent jurisdiction” in relation to Federal Courts. His Honour made the following comments:

I agree with the joint reasons that it is desirable, in relation to courts created by statute, that the expression “inherent powers” should not be used. That appellation may be appropriate to courts originally created out of the Royal Prerogative. It is not apt to a court, such as the Family Court, which is created by federal legislation. In such a court it is necessary to attribute the power (where it is not conferred expressly by or under such legislation) to an implication derived from the legislation establishing the body.

90. Accordingly, I do not consider that there is any “inherent” power to make a declaration as sought.

SECTION 60H AND SECTION 60HB OF THE ACT

91. Section 60H provides for the displacement of the donors of genetic material as parents and sets out the circumstance in which a child is not the child of the biological progenitor. In Groth & Banks (supra) Cronin J summarises the three instances in which a donor is not a parent of a child born as a result of an artificial conception procedure at [18]:
    • (a) where the child is born while the mother is married to or the defacto partner of another person - section 60H(1);
    • (b) where a child is born to a mother and under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of that woman - section 60H(2);
    • (c) where the child is born to a mother and under the prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man - section 60H(3).
92. The section has been interpreted as a provision designed to “enlarge, rather than restrict the categories of people who may be regarded as the child’s parents”. (see Brown J at [40] in Re Mark: An Application Relating to Parental Responsibilities [2003] FamCA 822; (2003) 31 Fam LR 162.
93. It was considered potentially unnecessary to refer to the State laws to establish the applicant as a parent.
94. If s 60H is not interpreted as providing an exhaustive definition of a parent for a child conceived through assisted reproductive technology, the authorities suggest that the ordinary meaning of the word “parent” is to be preferred. In Groth & Banks Cronin J considered a sperm donor to be a parent on the basis that he was “the biological progenitor and one of two people who set about a course of conduct with the intention of fathering a child...” (see [16]). Cronin J’s Judgment emphasised the interpretation of “parent” as extrapolated by Brown J thereby enabling or perhaps requiring each case to be determined on its particular facts.
95. In Baker & Landon [2010] FMCAfam 280; (2010) 43 Fam LR 675, the parties were in dispute as to whether a defacto relationship existed between them at the time of conception. The wife underwent an IVF procedure using the genetic material of an anonymous sperm donor. Riethmuller FM simply states at [30] that “if the parties are not defacto partners, then s 60H is not engaged and the donor is not excluded from being a parent”. His Honour then turned to how a “parent” is to be defined and found that “mere biology alone” is not sufficient. The donation occurred on “the expectation...that there would be no duties or obligations to the child”.
96. In Mason & Mason & Anor Ryan J considered the construct of ss 60H and 60HB which she noted were inserted into the Act as part of the Family Law Amendment (Defacto Financial Matters and Other Measures) Act 2008 (Cth). Her Honour considered that s 60HB is silent as to the definition of “surrogacy arrangements” and that it would therefore be a process not dissimilar in definition to an artificial conception procedure. Her Honour considered as follows:

However, this invites the question, why would Parliament simultaneously introduce two different provisions; one general and one specific more limited than the general? The answer would appear to be that Parliament intended to adopt the same scheme that operates in the states and territories. Namely a scheme for the declaration of parentage and, for children born of a surrogacy arrangement, the transfer of parentage in accordance with an order made by the Supreme Court of NSW.

97. Accordingly, her Honour considered that she was not permitted to make a declaration as to parentage as the parties should have first obtained an order pursuant to the relevant surrogacy legislation in New South Wales. Her Honour considered that “a cautious approach” to the issue of statutory interpretation was required.
98. I consider that reliance upon s 69VA for the declaration as sought by the applicants is of no assistance and is not an independent source of power.
99. The ability for a court to decide the issue of parentage is only to be embarked upon if an “issue” arises. The evidence that is to be received can encompass a broad category but must be focussed and directed to the determination of the “issue of parentage”. Section 69VA is directed to a determination of the biological connection that a party may have with a child and it is only thereafter that the court can consider whether to issue a “declaration of parentage”. The purpose of the declaration is as conclusive evidence of parentage for the purposes of the laws of the Commonwealth.
100. In the present case there is no dispute or issue as to parentage. The second applicant is the biological progenitor of Q. There is no need to produce evidence of parentage pursuant to s 69V, nor to invoke the provisions of s 69W as to orders for the carrying out of parentage testing procedure, nor 69X being orders associate with parentage testing orders.

SECTION 67ZC

101. It is argued on behalf of the applicants that s 67ZC can be interpreted such that it confers power on the court to allocate parental responsibility to non-parents namely, parental responsibilities that are able to be allocated to parents only.
102. Section 67ZC is set out below:

Orders relating to the welfare of children

(1) In addition to the jurisdiction that a court has under this Part in relation to children, the court has also jurisdiction to make orders relating to the welfare of children.

(2) In deciding whether to make an order under subsection (1) in relation to a child - a court must regard the best interests of the child as a paramount consideration.

103. The scope of application of s 67ZC is confined by s 69ZH that where there is reference to a child it is confined to a “child of the marriage”.
104. Clearly in the present case, Q is not a child of the marriage.
105. The applicants argue that the expression “child of the marriage” as used in s 67ZC (by virtue of s 69ZH(2)(a)) is ambiguous. It is submitted that the definition of “child of the marriage” in s 60F(i) namely:
     • (a) a child adopted since the marriage by the husband and wife or by either of them with the consent of the other;
     • (b) a child of the husband and wife born before the marriage; or
     • (c) a child who is under subsection 60H(1) or section 60HB the child of the husband and wife .

is not to be considered to be exhaustive and it is therefore open to further extension.

106. That proposition is supported by reference to Article 3.2 of the United Nations Convention on the Rights of the Child (the Convention) namely that:

States Parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing, 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.

107. It is submitted that such an interpretation would ensure that children with an intended parent who cannot be declared a parent under s 69VA will receive the care and protection that is necessary for their wellbeing. The ability to order a declaration of parentage would enable the court to allocate the full range of parental responsibilities and provide appropriately for the welfare of the child.
108. With respect to that argument, I do not consider that there is any ambiguity to the interpretation of “a child of the marriage” which would make it necessary to consider the Convention to ensure an interpretation of the Act that did not result in an unintentional breach of Australia’s international obligations. Q is not a child of the marriage and s 67ZC has no application.
109. Section 65C of the Act provides:

A parenting order in relation to a child may be applied for by:

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

(b) the child;

(ba) a grandparent of the child; or

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

110. Consistent with the objects of the Convention, s 65C provides an appropriate pathway for all persons concerned with the care, welfare and development of a child, whether they be a parent of the child or otherwise pursuant to Part VII of the Act.
111. The objects of the part are as set out in s 60B but are clearly focussed upon ensuring that the best interests of the children is the paramount consideration.
112. It could not be said that without relying upon s 67ZC in some way there has been insufficient regard to Article 3.2 of the Convention.

CONSEQUENCE OF A BIOLOGICAL CONNECTION

113. In Green-Wilson & Bishop (2014) FamCA 1031 Johns J had to consider whether a party who was the child’s biological father should be declared a parent of the child.
114. Her Honour helpfully considered the various authorities that the commercial surrogacy arrangement entered into by the parties was not a surrogacy arrangement recognised under the Status of Children’s Act 1974 (VIC).
115. Given that s 60HB of the Act did not apply, her Honour posed the question, who are the child’s parents?
116. Whilst Ryan J in Mason & Mason & Anor (supra) was not prepared to make the declaration as to parentage, that refusal was based upon her Honour’s view that children born of surrogacy arrangements should be properly considered by reference to the laws of a relevant State or Territory. In New South Wales the relevant legislation “covers the field”.
117. In respect of the State of Victoria, Johns J said as follows:

[41] The landscape is markedly different in Victoria, as commercial surrogacy is not prohibited here. Therefore there is a lacuna between State and Commonwealth laws in respect of children living the State of Victoria born as a result of international surrogacy procedures.

[42] At paragraph 33 of Mason (Supra), Ryan J noted as follows:

It is my preliminary view that for the purposes of the Act, the 2008 amendments evince an intention by Parliament that the parentage of children born as a result of artificial conception procedures or under surrogacy arrangements will be determined by reference to those provisions and not the general parentage provisions. This interpretation achieves, on a state by state (and territory) basis, a uniform system for the determination of parentage.

[43] That may be so in states or territories where there is legislation specific to the issue of the determination of parentage in respect of such surrogacy arrangements. However it does not resolve the issue of what is to occur for children born in states that do not have the benefit of such provisions.

118. Her Honour considered that she could be satisfied that it was appropriate to make a declaration with respect to a child born in those circumstances and now living in Victoria.
119. Ultimately, the tension as contended by her Honour was to balance the interests of the child and public policy considerations.
120. Clearly, the circumstances surrounding the birth of Q are not dealt with directly either by the relevant state legislation or by reference to s 60HB of the Act. It may well be an unsatisfactory position that children who are born pursuant to a commercial gestational overseas surrogacy arrangement are not acknowledged by either state or Commonwealth legislation.
121. I am not satisfied however that the definition of a parent should be extrapolated because of a legislative vacuum.
122. Clearly, s 60H and s 60HB have extended the category of persons who satisfy the definition of a parent. Whilst it can be argued that the categories of who is a parent are not necessarily closed, I consider that any perceived hiatus is a matter for legislation and not judicial interpretation.
123. It could be argued that the extension of the concept of a parent should be a matter of careful regulation and consideration. A surrogacy arrangement as may be permitted by state law with the resident checks and balances that can apply, may be qualitatively different to the potential for lack of regulation in respect of an international surrogacy procedure.
124. I have made reference to the surrogacy agreement entered into between the applicants and the surrogate mother and her partner. There is no evidence as to its status in Country T or indeed whether it would or is even capable of enforcement. There are certain of the operative clauses that pose the illusion of enforceability. The question remains whether the potentially onerous obligations as set out in the agreement, despite their almost certain lack of enforceability, may nonetheless represent a powerful and persuasive element weighing heavily upon the surrogate mother.
125. It may be that legislation has not kept pace with the reality of international surrogacy arrangements but equally, it cannot be assumed that the only approach is to revert to the biological connection as an alternative definition of “parent”.
126. Care must be taken in respect of any approach which has as its heart a determination based purely on genetic connection without more being considered.
127. Whilst it must be correct that the relevant state legislation does not provide for the circumstances of Q’s birth, the consequence is that the second applicant is not a parent of the child for the purposes of the Status of Children’s Act (Vic) under the Act.

PARENTING ORDERS

128. The applicants seek orders that they have “parental responsibility in relation to the long term and day to day care, welfare and development of Q”. They also seek an order that Q live with them.
129. I interpret the orders sought by the applicants to be an order for equal shared parental responsibility for the child.
130. Accordingly, the application is brought pursuant to Pt VII of the Act.
131. I have regard to the principles for conducting child related proceedings as set out in s 69ZN. The five principles being ss 69ZN(3), (4), (5), (6) and (7) require the court to consider the needs of the child and the impact the conduct of the proceedings may have on the child.
132. Each of the parties seek an order for equal shared parental responsibility. I consider such an order to be entirely appropriate.
133. A finding of equal shared parental responsibility requires a consideration of s 65DAA(2) of the Act and whether the orders sought by the parties are reasonably practicable.
134. In the circumstances of this case the child remains in the care of each of the applicants and I am satisfied as to the child’s current circumstances.
135. The first applicant remains at home and is engaged in the fulltime care of Q. The second applicant is in fulltime employment.
136. The family reside in appropriate accommodation and Q has the advantage not only of a loving affectionate and inclusive family environment, but the added advantage of a relationship with the immediate and extended families of each of the parties.
137. I propose to adopt the following approach:
     • Give consideration to the proposals put by each of the parties as they were identified and presented to the court.
     • Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2) having regard to the provisions of s 60CC(2) in order to determine what is in the child’s best interests.
     • Additional considerations as set out in s 60CC(3).
138. Notwithstanding that I did not hear from the respondents, I accept without reservation that the surrogate mother and her husband have no interest or intention to seek any relationship with Q whatsoever.
139. Accordingly, the care, welfare and development of Q falls exclusively to the applicants.
140. Notwithstanding that I have significant misgivings in respect of the surrogacy process and in particular the purported contracted relationship as between the applicants and the respondents as evidenced by the surrogacy agreement the terms of which are disturbing, I have no doubt that the applicants have overarching love for Q and have the ability, capacity and intention to meet the child’s needs.
141. In the circumstances of this case it is not necessary to give separate consideration to each of the relevant provisions of s 60CC. I do however bring to account s 60CC(3)(m) and am easily persuaded that orders as sought by the applicants are in the child’s best interests.

CONCLUSION

142. The Family Law Council released a report in 2013 entitled “Report on Parentage and the Family Law Act”. The report reflects on limitations of the provisions in the Act in relation to surrogacy arrangements, however, it is the council’s view that it is in the best interests of children born from international surrogacy arrangements that the child has at least one parent in Australia who is legally recognised as a parent. The council considered that the process of parentage transfer, subject to judicial oversight, is the preferred option pending an international regulatory response to the issues of overseas surrogacy arrangements.
143. The court considered that the significance of legal recognition as a parent as it relates to a broader social and symbolic status. This was considered in addition to the legal consequences that flow from a parent-child relationship. In G v H (supra) Brennan and McHugh JJ commented that:

A finding that a particular man is a child’s father might well be of the greatest significance to the child in establishing his or her lifetime identity.

144. The report writer also considered legal parentage and its significance to child support, citizenship, migration and inheritance.
145. Professor Jenni Millbank in her 2013 article “Resolving the Dilemma of Legal Parentage for Australians Engaged in International Surrogacy” did not consider the “enlarging” approach to legal parentage in surrogacy as a solution but rather the pathway that has the potential to create a number of additional problems. Professor Millbank considered the situation of a single woman within Australia using sperm donors and surrogate mothers in destination countries engaging in surrogacy with Australian intended parents. She says:

Many thousands of women in Australia who have utilised donor sperm in an assisted conception procedure under the belief that they are the sole parent would suddenly have a legal father to their child under the enlarging interpretation of the FLA (despite the provisions of State law in place for decades which clearly severed such status) with all of the attendant presumptions, mandatory considerations and restrictions that follow from this. Because this approach is premised on genetics and the inconsistent drafting in section 60H, it extends to sperm donors in every assisted conception procedure that has taken place to date in Australia in which the birth mother was not married or in a defacto relationship at the time of conception. [...] This approach could also encompass donors who had no involvement with the child and even unknown donors who were later identified, for example donors with whom the child has made contact via her clinic’s voluntary contact system in order to satisfy her own or her child’s curiosity or need for more information. Single mothers by choice through assisted conception are therefore rendered extremely vulnerable by the enlarging approach.

146. In the circumstances of this case I can well understand the dismay of the applicants that they are not able to secure for all purposes that which they fervently seek namely, recognition and a declaration of parentage.
147. There is a clear need for urgent legislative change.
148. I make orders as appear at the commencement of these reasons.

I certify that the preceding one hundred and forty eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 9 September 2015.







Associate:



Date: 9 September 2015