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PARTIES SEEKS TO BE RECOGNIZED AS THE LEGAL PARENTS OF THEIR CHILD, BORN THROUGH SURROGACY, IN AUSTRALIA

HIAN & JANG AND ANOR

FAMILY COURT OF AUSTRALIA

[2020] FamCA 171

 

This case is an application for an Order of Parental Responsibility for X (the child), born in 2015, who is the parties’ child through surrogacy.

FACTS:

Mr. Hian (father) and Ms. Jang (the mother), the Applicants, sought for an Order of Parental Responsibility for X (the child), who was born to a surrogate mother in China.  Currently, the parents are recognized under Chinese law as the legal parents of the child, and they are seeking the same recognition in Australia, particularly for the mother, who is not biologically related to the child, but for all intents and purposes, is the child’s only known mother.  The parties are seeking to rectify this, so that both parties are equally recognized as the child’s parents in both jurisdictions/countries, and so that they are ultimately able to migrate to Australia on a permanent basis with their youngest child.

After the child’s birth, the Applicants applied for a permanent residency VISA for the child to live with them in Australia. However, they were informed by the Department of Immigration and Border Protection that they were unsuccessful in their application on the basis that they required parental consent from the biological mother (surrogate). They were advised that unless the consent of the biological mother was obtained the applicant parents do not have permission to remove the child from China to Australia.

The parents have since engaged a lawyer in China to locate the details of the surrogate mother’s identity but were unsuccessful due to the surrogacy agency reportedly no longer being operational. They managed to locate the contact person and former director of the agency. He, too, has been unable to assist, and the identity and location of the surrogate mother remains unknown.

ISSUE:

Whether or not the Court should grant the Application for an Order sought by the parties.

HELD:

Section 60CA of the Part VII of the Family Law Act 1975 (Cth) provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. This is confirmed in s 65DAA of the Act, which sets out the list of matters that the Court must consider in determining what is in the child’s best interests. Those primary considerations are (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  In balancing these considerations, the Court must give weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. [1]

A relevant consideration in this matter is the detriment that would be suffered by the child in the event that orders are not made. That detriment is essentially one that applies in respect to the ability of the child to travel with the parents in circumstances where they are seeking permanent residency in Australia and immigration requirements require the consent of the child’s surrogate birth mother.

The Court is satisfied that the child has a meaningful relationship with both of the parents and that the child does not have a meaningful relationship with the child’s surrogate birth mother.  Further, the child is not at risk of either psychological or physical harm in the care of the Applicants.  The child is well loved and cared for in their care.  There are no current risk factors that would likely impact upon the safety of the child in the parties’ primary care. The only foreseeable risk currently is the parties’ ability to remain an intact family living in Australia. Should they be unsuccessful in receiving permanent VISAs, this will likely impact upon the parents emotionally and upon their relationship with their eldest daughter, should she choose to remain in Australia. The child will likely feel the loss of his sister and nephew, who has the potential to grow up more as a sibling relationship, if living in close proximity or together.

The Court found that the Orders sought by the Applicants are appropriate in the circumstances, as the current impediment to the child obtaining a visa to freely enter into Australia with the parents creates a risk to the child.

 

[1] Part VII of the Family Law Act 1975 (Cth), ss 60CC(2)(b).

 

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