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Bernieres and Anor & Dhopal and Anor [2015] FamCA 736

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Facts

The applicants desired to have children, but the first applicant was unable to conceive either naturally or with the assistance of in vitro fertilisation. This was due to her poor egg quality and low egg reserve. Accordingly, the applicants decided to enter into an overseas commercial surrogacy arrangement.

The second applicant’s sperm was used to fertilise an ovum from an anonymous donor resulting in the creation of an embryo. An embryo was created and transferred to the country of the surrogate mother. The embryo was implanted into the surrogate in August of 2013 and a child, Q, was born in 2014. She was living with the applicants in Victoria at the time that the proceedings were initiated.

Orders were sought for equal shared parental responsibility and a declaration of parentage in relation to both applicants. Leave to apply for step parent adoption was also sought as an alternative to the first applicant failing to obtain the declaration.
The Decision in Bernieres and Anor & Dhopal and Anor

There were two issues that fell for determination before Berman J. The first was “…whether there is an emphasis in Pt VII of the Act that focuses upon a biological connection to the effect that “parent” equates with a child’s biological parent.” Section 4(1) of the Act provides that “parent, when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child.” This definition was of no assistance in determining whether either of the applicants were parents of Q.[4]

Berman J then went on to consider whether the provisions of s 60HB applied to instant case, since it determines the parentage of children born under a surrogacy arrangement. Relevantly, s 60HB provides:

Children born under surrogacy arrangements

(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.”

Berman J determined that the “prescribed laws” for the purpose of these proceedings were ss 20 and 22 the Status of Children Act.[5] Section 20 of the Status of Children’s Act provides:

Application for a substitute parentage order

(1) The commissioning parents of a child born under a surrogacy arrangement may apply to the court for a substitute parentage order if—

(a) the child was conceived as a result of a procedure carried out in Victoria; and

(b) the commissioning parents live in Victoria at the time of making the application.

(2) An application for a substitute parentage order must be made—

(a) not less than 28 days, and not more than 6 months after the birth of the child; or

(b) at another time with leave of the court.

(3) Before the court hears the application, the commissioning parents must file a certified copy of the child’s birth certificate (if available) with the court.

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.

Berman J found that the relevant provisions of the Status of Children’s Act did not apply[6] for the following reasons. The surrogacy arrangement was a commercial surrogacy arrangement as opposed to an altruistic arrangement.[7] It was not commissioned with the assistance of a registered assisted reproductive technology provider.[8] Nor was the procedure that resulted in Q’s conception carried out in Victoria.[9]

Having found that neither applicant was a parent under either ss 4 or 60HB of the Act, Berman J went on to consider whether the definition of “parent” could be extrapolated to include the applicants.[10] It was determined that it could not.[11] The basis for this determination was that any lacuna between State and Commonwealth legislation should be resolved by parliament as opposed to judicial interpretation.[12] Here, the lacuna consisted in the Status of Children’s Act lack of provision for children born from a commercial surrogacy arrangement commissioned overseas.[13]

The second issue that fell for determination was whether the court had the jurisdiction to issue a declaration of parentage under s 69VA of the Act: [14]

“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.”

Section 69VA is not a “stand alone” power.[15] The child’s parentage must be an issue in the proceedings before s 69VA can be enlivened.[16] In other words, a declaration of parentage may issue only if the determination of a child’s parentage is incidental to the determination of another matter within the legislative power of the Commonwealth.[17] This might be the case where the child’s parentage is necessary to determine whether a party is liable to pay child maintenance, since parents are required to financially support their children.[18]

Berman J found that Q’s parentage was not an issue in the proceedings.[19] The basis for this finding was that there was no need to either produce evidence of parentage under s 69V or invoke the provisions of either s 69W or 69X (“the Relevant Provisions”) in respect of the applicants.[20]

Each of the Relevant Provisions are essentially concerned with the type of order[21] a court may make in ascertaining a child’s parentage.[22]

S69V Evidence of parentage

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.

Section 69W Orders for carrying out of parentage testing procedures

(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 the 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 the parentage testing procedure were to be 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.
S69X Orders associated with parentage testing orders
(1) If a court makes a parentage testing order, it may also make orders under subsection (2) or (4).

(2) The court may make such orders as it considers necessary or desirable:

(a) to enable the parentage testing procedure to be carried out; or

(b) to make the parentage testing procedure more effective or reliable.

(3) Some examples of the kinds of orders the court may make under subsection (2) are as follows:

(a) an order requiring a person to submit to a medical procedure;

(b) an order requiring a person to provide a bodily sample;

(c) an order requiring a person to provide information relevant to the person’s medical or family history.

(4) The court may make such orders as it considers just in relation to costs incurred in relation to:

(a) the carrying out of the parentage testing procedure or other orders made by the court in relation to the parentage testing procedure; or

(b) the preparation of reports relating to the information obtained as a result of carrying out the parentage testing procedure.

It was accepted that the second applicant was Q’s biological father.[23] Accordingly, Berman J held that there was no need to invoke any of the Relevant Provisions in relation to the second applicant.[24] The first applicant is not a biological progenitor of Q.[25] And the Relevant Provisions are only concerned with orders that relate to ascertaining whether a particular individual is a child’s biological progenitor.[26] So, there was no need to invoke the Relevant Provisions in relation to the first applicant. For these reasons, Berman J found that there was no need to make orders to produce evidence under any of the Relevant Provisions.[27]

[4] Bernieres and Anor & Dhopal and Anor[2015] FamCA 736 at [62].
[5] Ibid [70]-[71].
[6] Ibid [72].
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] Ibid [121].
[11] Ibid.
[12] Ibid [122].
[13] Ibid [120].
[14] Ibid [50].
[15] Ibid [76].
[16] Ibid.
[17] Ibid [79].
[18] Duroux v Martin (1993) 17 Fam CA 125 at [15]
[19] Bernieres and Anor & Dhopal and Anor[2015] FamCA 736 at [100].
[20] Ibid [99]-[100].
[21] E.g., an order for DNA testing.
[22] Bernieres and Anor & Dhopal and Anor [2015] FamCA 736 at [77].
[23] Above n 29.
[24] Ibid.
[25] Bernieres and Anor & Dhopal and Anor [2015] FamCA 736 at [4]-[5].
[26] Above n 25.
[27] Above n 29.