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A v X; Re Z

A v X; Re Z

Case [2022] NSWSC 971 20 July 2022

Parentage Order

Child Welfare

Surrogacy

Best Interests of the Child

Family Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: A v X; Re Z [2022] NSWSC 971
Hearing dates: On the papers
Date of orders: 20 July 2022
Decision date: 20 July 2022
Jurisdiction: Equity
Before: Darke J
Decision:
The plaintiffs’ Summons is dismissed.

Catchwords:
FAMILY LAW AND CHILD WELFARE – surrogacy – parentage order – uncontested application for parentage order under s 12(1) of the Surrogacy Act 2010 (NSW) – where the child the subject of the proposed parentage order was stillborn – where applicants have not complied with all statutory requirements and preconditions for the making of parentage order – whether the Court has the power to make parentage order transferring parentage in relation to a stillborn child – whether it is possible to satisfy the mandatory precondition in s 22(1) of the Surrogacy Act 2010 (NSW) where the child the subject of the proposed parentage order is not born alive – held that the Court cannot make parentage order in relation to a stillborn child – held further that the applicants had not satisfied the Court that the proposed order would be in the child’s best interests
WORDS AND PHRASES – “child” – “born” – “child of a surrogacy arrangement” – “child born as a result of a surrogacy arrangement” – “child … who is the subject of a surrogacy arrangement”

Legislation Cited:
Births, Deaths and Marriages Registration Act 1995 (NSW), s 4
Births, Deaths and Marriages Registration Act 1996 (Vic), s 12, s 13
Family Law Act 1975 (Cth), s 4
Surrogacy Act 2010 (NSW)

Cases Cited:
A-G (Qld) ex rel Kerr v T (1983) 46 ALR 275
AP v RD [2011] NSWSC 1389
Application by JSC & RSC [2013] NSWSC 440
Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union (2018) 268 FCR 128; [2018] FCAFC 223
BB v DD; Re AA and Surrogacy Act 2010 (NSW) [2015] NSWSC 1095
Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56
Envestra Ltd v Commissioner of Taxation (2008) 169 FCR 300; [2008] FCA 249
Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628
GP v BP [2018] NSWSC 1887
In the Marriage of F (1989) 96 FLR 118
Keller v Keller (2007) 15 VR 667; [2007] VSC 118
Paton v British Pregnancy Advisory Service Trustees [1979] 1 QB 276
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v F (1996) 40 NSWLR 245
R v Iby (2005) 63 NSWLR 278; [2005] NSWCCA 178
R v Kelly (Edward) [2000] QB 198
R v Sims (1601) Gouldsb 176; 75 ER 1075
Re F (in utero) [1988] Fam 122
Re HBW [2014] NSWSC 1581
S v B; O v D [2014] NSWSC 1533
SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55
Surrogacy Application by a Couple from the United States of America [2017] NSWSC 1806
SZTAL…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A v X; Re Z

Details

AGLC: A v X; Re Z [2022] NSWSC 971
Case: [2022] NSWSC 971
Decision Date: 20 July 2022

CaseChat Overview and Summary

The case of A v X; Re Z involved an application for a parentage order under section 12(1) of the Surrogacy Act 2010 (NSW), in relation to a stillborn child. The applicants sought to have their names recorded on the child’s birth certificate as the parents. The court was required to determine whether it had the power to make such a parentage order and if the applicants had satisfied the statutory requirements and preconditions.

The central legal issues were whether the court could make a parentage order for a child who had not been born alive and if the mandatory precondition in section 22(1) of the Surrogacy Act could be met in such circumstances. The court found that a parentage order could not be made for a stillborn child as the statutory scheme was predicated on the child being born alive. Additionally, the court held that the applicants had not demonstrated that the proposed order would be in the best interests of the child, given the statutory preconditions were not satisfied.

In reaching its decision, the court considered the statutory language and the legislative intent behind the Surrogacy Act 2010 (NSW). It found that the statutory provisions implied that the child must be born alive for a parentage order to be valid. The court also examined the broader policy considerations of protecting the welfare of the child and the importance of adhering to legislative mandates. Consequently, the court concluded that the applicants had not satisfied the necessary requirements to have the parentage order granted.

The court's final orders were that the application for a parentage order in relation to the stillborn child be dismissed. The court did not grant the order as it was not within its power to do so, and the statutory preconditions had not been met.

Orders