AB & CD v EF

[2013] NSWSC 866

Supreme Court

New South Wales

Medium Neutral Citation:	AB & CD v EF [2013] NSWSC 866
Decision date:	28 June 2013
Before:	Ball J
Decision:	Parentage order made
Catchwords:	FAMILY LAW - surrogacy - parentage order - extension of time pursuant to s 16 of the Surrogacy Act 2010 (NSW) - no issue of principle
Legislation Cited:	New South Wales Legislative Council, Surrogacy Bill 2010 (Hansard) 21 October 2010 Surrogacy Act 2010 (NSW)
Category:	Principal judgment
Parties:	AB (First Plaintiff) CD (Second Plaintiff) EF (Defendant)
File Number(s):	065/2013

Judgment

1. By a summons dated 26 April 2013 and apparently filed on 29 April 2013 the plaintiffs seek a parentage order under s 12 of the Surrogacy Act 2010 (NSW) (the Act) in respect of two children who were born as twins.

1. The first plaintiff (AB) is the biological father of the children. The second plaintiff (CD) is his wife. The biological and birth mother of the children is the first cousin of CD (who I will refer to as EF).

1. The arrangement by which EF agreed to give birth to the children in question is a pre-commencement surrogacy arrangement within the meaning of the Act - that is, it is an arrangement that was made before the commencement of the Act (1 March 2011) by which EF agreed to become pregnant with a child with the intention that the parentage of the child would be transferred to another person (in this case, CD): see ss 5 and 15 of the Act.

1. The children are now six years old. They have been living as the children of AB and CD since they left hospital, a week after their birth.

1. This is clearly an appropriate case in which to make a parentage order in favour of AB and CD. They have in all respects acted as the parents of the children since the children were born. The evidence is that the children enjoy a happy childhood and that AB and, in particular, CD are suitable parents. The arrangement was made before the children were conceived because CD had tried unsuccessfully to have children of her own. EF has a family of her own and has clearly consented to the arrangement and is in favour of the parentage order being made.

1. The only issue in this case is whether the orders should be made having regard to s 16 of the Act. That section provides:

Time within which application must be made

(1) An application for a parentage order in relation to a child may be made not less than 30 days and not more than 6 months after the child's birth, subject to this section.

(2) For a pre-commencement surrogacy arrangement, an application for a parentage order may be made not more than 2 years after the commencement of this section.

(3) The Court may hear and determine an application for a parentage order that is made after the time limit for making an application under this section if the Court is satisfied that exceptional circumstances justify that action.

1. In this case, the application was made more than two years after the commencement of the section. The question, then, is whether there are "exceptional circumstances" which would justify the court hearing and determining the application notwithstanding that it is out of time.

1. I am satisfied that exceptional circumstances exist in this case.

1. It is not entirely clear why s 16 imposes a limitation period of two years in respect of pre-commencement surrogacy arrangements. Section 16 imposes a limitation period of six months in respect of other types of surrogacy arrangement. It appears from the second reading speech that the time limit of six months was to ensure certainty. In delivering that speech, the then Attorney General, The Honourable John Hatzistergos MLC said (New South Wales Legislative Council, Surrogacy Bill 2010 (Hansard) 21 October 2010 at 26544):

Clause 15 provides that intended parents may apply for a parentage order between 30 days and six months after the child's birth. The 30-day time limit operates as a cooling-off period for the birth mother, who will have the opportunity to carefully consider consenting to the parentage order after the birth of the child. The upper time limit of six months aims to provide certainty to the parties, and to encourage a secure and stable living environment for children.

It may be inferred that the two year limitation period was intended to attain the same objective.

1. Here, the application is brought approximately two months late. Although no explanation has been given for the delay, it can be inferred that it was an oversight.

1. In considering whether there are exceptional circumstances which would justify the court determining the application notwithstanding that it was brought late, the court must have regard to the purpose of the provision from which exception is sought. In the case of s 16 of the Act, the purpose of the provision is to provide what is essentially an arbitrary cut-off point so that the persons involved in the arrangement know with certainty their responsibilities in relation to a child who is conceived as part of a surrogacy arrangement.

1. Judged against that purpose, in my opinion, there are exceptional circumstances which would justify the court proceeding to determine the current application. As I have said, the application is only two months late. The arrangement by which the children are treated as children of AB and CD has been in place for a number of years. All the affected parties have proceeded on the basis that the children in question are the children of AB and CD. Far from creating certainty, the failure of the court to determine the application would only create uncertainty concerning the status of the children and those who are responsible for them. That would not be in the best interests of the children.

1. For those reasons, I make orders in terms of the short minutes of order that have been provided to me.

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Decision last updated: 28 June 2013