The Bunbury couple at the centre of the baby Gammy surrogacy scandal have escaped facing perjury charges for lying under oath about the genetic makeup of Gammy and his twin sister Pipah.
The Director of Public Prosecutions on Tuesday confirmed the state "did not consider it in the public interest" to pursue the charges against David and Wendy Farnell, who were in April awarded care of their two-year-old daughter Pipah, subject to strict supervision conditions.
Pipah's twin, Gammy, who has Down syndrome, is being raised by his surrogate mother, Pattaramon Chanbua in Thailand.
Ms Chanbua, 22, in April unsuccessfully fought to claim custody of Pipah after learning Mr Farnell was a convicted paedophile.
During his judgment, Family Court of WA Chief Judge Stephen Thackray said the Farnells had lied under oath about Ms Farnell being the egg donor for the twins when the pair actually used an anonymous egg donor, together with Mr Farnell's sperm.
The Farnells also neglected to tell authorities of Mr Farnell's criminal history and the existence of Pipah's twin sister Gammy – however their omission of these facts was not considered perjury.
"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'," Justice Thackray said.
"Mr Farnell was insistent that he should bear responsibility for the lie, and that if anyone was to go to prison for perjury, it should be him."
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.
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."
The Director of Public Prosecutions has since decided, following advice from the State Solicitor's Office and WA Police, not to pursue the charges.
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' birth 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.
The news the Farnells will escape perjury charges comes a month after Gammy's Thai mother, Pattaramon Chanbua told The Daily Telegraph she had not seen Gammy for two months because she was on the run from loan sharks.
She told the publication she had purchased a truck, but could not afford the repayments and had been forced to leave her home to search for work.
Gammy was being cared for by his grandmother in a house paid for by charity donations, mainly from Australians, totalling about $235,000.
