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

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.

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).

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.

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.

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.

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…

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 AB & CD v EF

Details

AGLC: AB and CD v EF [2013] NSWSC 866
Case: [2013] NSWSC 866
Decision Date: 28 June 2013

CaseChat Overview and Summary

The applicants, AB and CD, sought a parentage order under the Surrogacy Act 2010 (NSW) to establish their legal parentage of a child born through surrogacy to EF, the surrogate mother. The Family Court of Australia heard the application, which involved determining whether the applicants were eligible for a parentage order despite a delay in lodging the application. The applicants argued that they had been unaware of the surrogate's pregnancy until shortly before the child's birth, and thus, they were unable to apply within the statutory timeframe.

The court considered whether the applicants' delay in making the application could be excused under section 16 of the Surrogacy Act, which allows for an extension of time if there is a satisfactory explanation for the delay. The applicants contended that their ignorance of the pregnancy constituted a satisfactory explanation for their delay. The court had to decide whether this was indeed a satisfactory explanation, and whether it was in the best interests of the child to grant the order.

The court found that the applicants had provided a satisfactory explanation for their delay, as they were genuinely unaware of the pregnancy until shortly before the birth. The court also found that it was in the best interests of the child for the parentage order to be granted. The court emphasised that the primary consideration was the welfare of the child and that the delay did not prejudice the interests of any other party. Consequently, the court granted the applicants' application for a parentage order, recognising AB and CD as the legal parents of the child.

The final orders of the court declared AB and CD to be the legal parents of the child, with all the rights, duties, powers, and responsibilities of parents. This decision provided clarity and legal certainty for the applicants in their relationship with the child, ensuring that their rights and responsibilities as parents were recognised and protected by the law.

Orders