The WA couple at the centre of the baby Gammy surrogacy scandal could be charged with perjury for lying about the genetic makeup of Gammy and his twin sister Pipah while under oath.
David and Wendy Farnell are potentially facing a maximum penalty of up to 14 years imprisonment after WA Attorney General Michael Mischin on Thursday referred the perjury allegations to the Office of the Director of Public Prosecutions to investigate.
The Bunbury couple were given custody of their two-year-old daughter Pipah on April 14, after Family Court of WA Chief Judge Stephen Thackray ruled the child continue to live with the Bunbury couple, subject to strict conditions.
Pipah's twin brother, Gammy, has Down syndrome and continues to live with his surrogate mother Pattaramon Chanbua, 22, in Thailand.
During his judgment, Justice Thackray said the Farnells had lied under oath about Wendy being the egg donor for the twins when the pair actually used an anonymous egg donor, together with David's sperm.
"The Farnells only told the truth about the identity of the egg donor after the story broke in the media," he said.
"While I accept that the Farnells were motivated by what they thought would be in Pipah's best interests, the fact remains that the legal system is founded upon the obligation of parties to tell 'the truth, the whole truth and nothing but the truth'.
"The irony of the Farnells telling this lie is that it was unnecessary. In my view, it would not have damaged their case one jot if they had told the truth.
"What was more serious was their failure to reveal the existence of Gammy and the fact that Mr Farnell was a sex offender. However, they did not lie on oath about those topics – they just omitted to mention them."
The Independent Children's Lawyer, who was involved in the family court proceedings, argued the Farnells should not be made to face perjury charges, claiming they had been "adequately punished" by media attention surrounding the case.
"In considering whether this is one of those occasions where a prosecution referral should be made, the court is invited to consider the very emotional and difficult circumstances that the Farnells found themselves in while in Thailand and upon their return to Australia," the judgment read.
Justice Thackray also raised concerns about Pipah if her parents were to be prosecuted.
"I am concerned about the impact on Pipah of the further stress, expense and public humiliation for her carers that would be the inevitable result of criminal proceedings," he said.
"Ordinarily, I would not consider this a matter of great relevance; otherwise, parents would be given carte blanche to ignore the law because of the impact on their children of being punished for their wrongdoing.
"However, in the present matter, the Farnells have already suffered great humiliation and enormous stress for things they did not do."
On Wednesday, Mr Mischin said he had received and accepted a recommendation from the State Solicitor's Office that the perjury matter be referred to the DPP for consideration of whether any charges should be laid against the Farnells.
The initial court hearing to decide whether Pipah should continue to be raised by the Farnells or returned to Thailand to be with her surrogate mother and twin brother was initiated when Ms Chanbua applied to the court to raise Pipah after learning Mr Farnell, 58, was a convicted paedophile who had previously served time in jail for molesting young girls in the 1990s.
Pipah and Gammy were born in Thailand in December 2013 by commercial surrogacy using Mr Farnell's sperm and an unidentified woman's egg after several failed attempts for Mr and Mrs Farnell, 50, to conceive using IVF.
The twins' births sparked a media frenzy when it was reported the couple abandoned Gammy in Thailand after learning he had a disability.
On April 14, Justice Thackray made an order that it go on the record that the parents did not abandon Gammy, nor did they seek access to money in his trust account, at any time – as was reported at the time.
He found that Pipah, who has been raised by the Farnells since birth, lived a happy and content life, and would be traumatised if removed from the only parents she's ever known.
"I have primarily taken into account the strong attachments that Pipah has now formed with the Farnells and many others in Bunbury, as well as the quality of the care she is receiving," Justice Thackray said.
"While it is a matter of grave concern to leave any child in the home of a convicted sex offender, I have accepted the expert evidence that while there is a low risk of harm if Pipah stays in that home, there is a high risk of harm if she were removed.
"I have also taken into account the measures that can be put in place to ensure Pipah is kept safe."
Those measures include Department of Child Protection officers visiting their home at least three times a year by appointment and additional unannounced visits.
The Farnells must also comply with a 'safety plan' developed for Pipah which means Mr Farnell cannot be left alone with his daughter for fears he may try to 'groom' her.
- with Lindsay Murdoch.
