Background
In the recent Western Australian case of Adair & Anor and Bachchan [2017] FCWA 78 (22 June 2017) Duncanson J heard an undefended application under Part 5 of the Family Court Act 1997 (WA) in respect of twin children aged four by Mr Adair and his former de facto partner, Mr Bonfils. While their relationship ended before the children were born they remained close friends who lived together as “housemates”. The twins were born pursuant to an international commercial surrogacy arrangement entered into by Mr Adair and the birth mother in India.
Court Analysis
The Court found that the surrogacy was documented; the children were conceived with sperm from Mr Adair and an egg from an anonymous donor; both applicants were in India for the birth, spending three weeks there before bringing the children to Perth. Further, the children were issued with birth certificates in Delhi naming Mr Adair as father and the mother as “NIL”.
The children obtained citizenship by descent from Mr Adair and became Australian citizens in 2013 (prior to which DNA testing found him to be the genetic father of the children). An opinion was adduced from an advocate in New Delhi that Mr Adair and the surrogate were legally competent to make the contract and that she would have no enforceable right after giving birth. The agreement recorded that the surrogate gave informed consent and was to be paid in rupees the equivalent of $3858 for a normal birth or $4458 for a caesarean birth.
The Court stated that while Mr Adair was primary carer of the children he had been diagnosed with a terminal illness so “wishes to ensure that the children are cared for and loved by someone as he had hoped to do”, Mr Bonfils was that person and the children having a close relationship with both applicants. Neither was a parent but they were held to have standing as “persons concerned with their care, welfare or development” (purusuant to ss88 and 185 of the Family Court Act).
The Court took into account the considerations of s66C (the Western Australian Act’s equivalent of s60CC of the Family Law Act) and was satisfied that the orders sought were in the children’s best interests.
Orders
It was ordered that the applicants share parental responsibility and that the children live with them in Western Australia, with the birth mother to be served with the order.