Family Court says that gay dads are OK

Tuesday, September 05, 2017

In a recent Western Australian case, parenting orders were made in favour of both the natural father and the male co-parent as to 4 year old twins born through international commercial surrogacy. Neither the natural father nor the co-parent were referred by the judge to authority for undertaking commercial surrogacy overseas, even though it could be an offence in Western Australia to do so.

In the case, called Adair and Bachchan,Mr Adair who was the natural father was aged 41. He was a homemaker. The male co-parent was Mr Bonfils aged 57 and an accountant. They lived together from 1996. They ended their relationship in early 2002, but remained close friends.

In 2009 they decided to be housemates, but to live their own lives in terms of their relationships.

In 2011 Mr Adair decided to have a child by surrogacy. Mr Bonfils agreed to co-parent with him and was fully involved in the surrogacy process. In 2012 Mr Adair entered into a surrogacy arrangement with a surrogate in New Delhi. The surrogate was 21 years of age and divorced. Twins were conceived and born prematurely. Both men were in India for the births and spent 3 weeks there before bringing the children to Perth. Mr Adair was named as the father. The name of the mother was nil. The children obtained citizenship by descent from Mr Adair, after a DNA test confirmed that he was the father. They became Australian citizens in 2013.

The compensation payable to the surrogate was A$3,858 in case of a normal birth, A$171 at the time of transfer and A$4,458 in the case of a caesarean.

Mr Adair has been diagnosed with a terminal illness. His specialist reported that “…It is difficult to determine Mr Adair’s prognosis at this stage but we continue to support and monitor [him] and encouraging (sic) him to make plans for the future of himself and his family”. There was no cure for his terminal illness. His doctors were applying a life extension approach to it. Mr Adair wished to ensure that the children were cared for and loved by someone as he had hoped to do. That someone is Mr Bonfils. The children have a close and loving relationship with both of them. Mr Adair was the children’s primary caregiver. The children see Mr Bonfils as their father. They call Mr Adair “dad” and Mr Bonfils “[a pet name]”. Mr Bonfils said he treats the children as his own and loves and adores them.

Both Mr Adair and Mr Bonfils were moved to tears during the hearing when Mr Adair described his illness and the likelihood that he would not be there for the children as they grow up. He said that if he were to pass away and the children were removed from Mr Bonfils “they would be losing both parents”.

Justice Susan Duncanson said that both Mr Adair and Mr Bonfils impressed her as sincere and decent people who were committed to the two children for whom they cared deeply. They took seriously their responsibility to provide for the children now and in the future and they have given careful thought and planning as to what may confront them in the future. She was satisfied that the children, brought from India when only 3 weeks old, would continue to be loved and nurtured by them or either of them. Her Honour ordered that the children live with him and that they have equal shared parental responsibility for the children.

Her Honour was satisfied that Mr Adair (the first applicant) and Mr Bonfils (the second applicant) were devoted carers of the children.

Her Honour took into account the best practice principles about surrogacy and determined that an Independent Children’s Lawyer was not required to be appointed and nor was a family report needed to be prepared. Her Honour found that neither Mr Adair nor Mr Bonfils were parents of the children but that they were persons concerned with the children’s care, welfare and quoting an appeal court decision that the relevant section of the Family Law Act:

“…recognises that it is not parenthood which is crucial to the best interest of the child, but parenting– and the quality of that parenting and the circumstances in which it is given or offered by those who content for parenting orders.”

Her Honour said:

” The children have a meaningful relationship with the applicants and it is to their benefit that it continues. They are not at risk of harm in their care.
The children have a close and loving relationship with both applicants. They visit the first applicants’ parents and siblings regularly. The second applicant intends to ensure that the children maintain their relationship with the paternal family after the first applicant’s death. The children have no relationship with the birth mother.

Both applicants have taken the opportunity to participate in decision making about major long-term issues relating to the children. Currently the children attend kindergarten at [Primary School C] where they are making good progress. They attend two days one week and three days in the alternate week. The applicants purchased a property at [Suburb D] and are building a five bedroom home which they expect to be completed at the end of this year when they will occupy it. The home falls within the catchment area of [Senior High School E], a school which the applicants propose the children will attend for their secondary education. Both applicants have the capacity to provide for the needs of the children. The second applicant deposes that the children are healthy and have met all of their developmental milestones. Their immunisations are current and they consult with their family doctor regularly.
Both applicants have demonstrated a responsible attitude towards the children and the responsibilities of parenthood. They have made arrangements for the care and financial support of the children after the death of the first applicant. The first applicant has updated his Will and appointed the second applicant as the guardian of the children. The first applicant has also made financial provision for the children.
As to the children’s background, the first applicant said, when describing the children, that both have Indian traits. They know their mother is Indian. The applicants have multicultural friends and mix with other parents who have surrogate children. They will maintain the children’s Indian heritage. The first applicant acknowledged the children may wish to find their biological mother in the future.”

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