ALLAN & PETERS
[2018] FamCA 1063
•7 December 2018
FAMILY COURT OF AUSTRALIA
| ALLAN & PETERS | [2018] FamCA 1063 |
| FAMILY LAW – CHILDREN – REGISTRATION OF OVERSEAS CHILD ORDER – Where the applicants seeks to register in Australia an order made by a Court in the United States of America – Where one of the applicants is the biological father of the child – Where the order is found to be an ‘overseas child order’ for the purpose of s 70G of the Family Law Act 1975 (Cth) – Where the Court finds that an enforceability certificate has not been produced for the purpose of reg 23(1) of the Family Law Regulations 1984 (Cth) – Where the Court is not satisfied that the agreement is not a commercial surrogacy agreement – Where commercial surrogacy is prohibited in Queensland and Victoria – Where the application to register the overseas child order is dismissed. |
| Assisted Reproductive Treatment Act 2008 (Vic) Family Law Rules 2004 (Cth) |
| Re: Grosvenor [2017] FamCA 366 Rose [2018] FamCA 978 Sigley & Sigley (2018) 57 Fam LR 347 Carlton & Bissett and Anor (2013) 49 Fam LR 503 Lee & Hutton 50 Fam LR 322 Re: Halvard and Anor [2016] FamCA 1051 Talbot & Norman (2012) FLC 93-504 |
| APPLICANTS: | Mr Allan & Mr Peters |
| RESPONDENT: | No respondent |
| FILE NUMBER: | BRC | 8358 | of | 2018 |
| DATE DELIVERED: | 7 December 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | By way of written submissions |
REPRESENTATION
| SOLICITOR FOR THE APPLICANTS: | Mr S Page, Page Provan by way of written submissions |
Order
The Application in a Case filed on 25 July 2018 seeking to register an overseas child order be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Allan & Peters has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 8358 of 2018
| Mr Allan & Mr Peters |
Applicants
REASONS FOR JUDGMENT
Mr Allan and Mr Peters are applying for the registration of an order made in the District Court, County K, State J, United States of America on 26 April 2017 (“the County K order”).
Pursuant to the County K order the applicants have sole parental rights for a child born with the assistance of in vitro fertilisation using Mr Peters’s sperm, an anonymous donor ovum and a surrogate gestational carrier.
The child was born in the United States of America. There is no respondent to the application. The applicants have filed written submissions and request that the application be determined in chambers. The application for registration was filed in Queensland, Australia but registration is sought under a federal Act.
brief background
Mr Allan and Mr Peters have been in a relationship since 2013, and have lived in a de facto relationship since 2015. They have been in a registered domestic relationship in Victoria, Australia since 2017. Both men are Australian citizens and continue to reside in Victoria. Mr Allan is also a County D citizen.
On mid 2016 the applicants entered into a gestational carrier agreement (“the agreement”) with Ms E, (“the gestational carrier”) and her husband, Mr F. The agreement was entered into in the United States.
As a result of in vitro fertilisation[1] at a fertility clinic in City G, State H, an embryo, resulting from the fertilisation of Mr Peters’s sperm and a donor egg, was implanted into the uterus of the gestational carrier. The pregnancy was confirmed in late 2016.
[1] In vitro fertilisation is a process of fertilisation where an egg is combined with sperm outside the body, in vitro. The process involves removing an ovum or ova from a woman's ovaries and letting sperm fertilise them in a liquid in a laboratory.
A child was born in 2017 in State J, United States of America. He is now nearly sixteen months old. The child is an Australian citizen and holds an Australian passport. The child appears to be healthy, well cared for and not in need of protection.
Both the applicants are named as the child’s parents on his birth certificate and pursuant to the agreement,[2] the child was placed in their care following his birth. The applicants then stayed in the United States until their return to Australia with the child later in 2017. The child has never resided with the gestational carrier or her husband.
[2] See the agreement, p 4, [4].
The applicants both depose to maintaining regular contact with the gestational carrier through messaging and photo and video sharing. They hope that she will remain an important part of the child’s life and “[w]hen he’s old enough” they wish to tell him about her and “her selfless act”. It is also the applicants’ wish for the child to have a sibling in the future. In preparation, they have a number of viable embryos stored in the United States so that any future sibling will have a genetic connection to the child.
The agreement specifies that each party to the agreement was legally represented throughout the surrogacy process and also acknowledges that “[a]ll Parties waive the potential conflict of interest in order that the Gestational Carrier’s and her Husband’s legal expenses … may be paid for or reimbursed by the [applicants].”[3]
[3] See the agreement, p 21, [21].
The agreement requires each of the parties “to promptly facilitate the procedural aspects of the process in order for the Intended Parents to be legally established as the parents of the Child”.[4] It also acknowledged that the gestational carrier and her husband “agree to assist the Intended Parents to the extent necessary” due to the fact that the applicants are Australian citizens and “there are separate procedures and proceedings that the Intended Parents must follow”.[5]
[4] See the agreement, p 22, [24].
[5] Ibid.
It appears that the gestational carrier and her husband were provided with every opportunity to take part in the legal process to establish parentage in favour of the applicants.
Pursuant to the agreement the gestational carrier and her husband “do not desire to have a parental relationship with any child born pursuant to this Agreement … and … believe and intend that any child born to the Gestational Carrier as a result of the conduct contemplated by this Agreement is morally, legally, ethically and contractually that of the Intended Parents [the Applicants].”[6]
[6] See the agreement, p 1 - 2.
The County K Order
The County K order was made about 4 months prior to the child’s birth. It names the gestational carrier and her husband as the Petitioners and the applicants as the respondents and provides for the applicants to “have all parenting rights and responsibilities” and ordered that the applicants are both “lawful and natural parent[s] of the Unborn Child”. It further provides that the gestational carrier (and her husband) “are not the parents of the Unborn Child and shall have no parenting rights or responsibilities” and that their “name[s] shall not appear on the Unborn Child’s birth certificate”.
The County K order is stated to be a “full and final order”.
Statutory Provisions – Registration in Australia
Section 70G of the Family Law Act 1975 (Cth) (“the Act”) is included in Part VII of the Act and provides the statutory basis for the making of regulations enabling the registration of ‘overseas child orders, other than excluded orders’.
An ‘overseas child order’ is defined in s 4 of the Act and relevantly includes an order made by a court of a ‘prescribed overseas jurisdiction’ that ‘however it is expressed, has the effect of determining the person or persons with whom a child who is under 18 is to live, or that provides for a person or persons to have custody of a child who is under 18’.
An ‘overseas jurisdiction’ means a country, or part of a country, outside Australia (see s 4 of the Act).
Section 4 of the Act defines ‘child’ for the purposes of Part VII of the Act. It is a non-exhaustive definition and includes an adopted child and a stillborn child and for the purposes of Subdivision E of Division 6 of that Part, as a person who is under 18 (including a person who is an adopted child). Part VII of the Act deals with children and Subdivision E of Division 6 deals with certain obligations under parenting orders. Subdivision D of Division 1 of Part VII affects the situations in which a child is a child of a person or is a child of a marriage or other relationship. There is no definition of embryo or foetus in the Act or Family Law Regulations 1984 (Cth) (“the Regulations”).
An ‘excluded order’ means:
(a)an interim order; or
(b)an order made in favour of a person where:
(i) the order was made on the application of the person; and
(ii) notice of making the application was not served on any other person; and
(iii) no other person appeared at the hearing of the application. (see s 4 of the Act)
Regulation 14 of the Regulations provides that for the purposes of the definition of ‘prescribed overseas jurisdiction’ in s 4(1) of the Act each country or part of a country set out in column 2 of an item in Schedule 1A is declared to be a prescribed overseas jurisdiction.
Regulations 23(1) and 23(1A) of the Regulations envisage that overseas child orders will first be received by the Secretary for the Attorney General’s Department and, if certain matters are established, the order will be sent to this Court for registration.
Regulation 23(6) provides the Court with a discretion to register the order even if it has not been received by the Court from the Attorney General’s Department if all other requirements of sub- reg (1) are satisfied.
Application of Statutory Provisions
The County K order has been provided directly to this Court by the applicants together with an Application in a Case seeking its registration. Accordingly, if all requirements of reg 23(1) are otherwise satisfied the Court has a discretion to permit registration. The applicants also request that the matter be determined in chambers.
Before exercising the discretion to register the County K order I must be satisfied that:
(a)The County K order is an overseas child order; and
(b)State J is a prescribed overseas jurisdiction; and
(c)A certified copy of an overseas child order from a prescribed overseas jurisdiction is produced; and
(d)A certificate is produced, signed by an officer of a court or by some other authority in the overseas jurisdiction relating to the order and containing a statement that the order is, at the date of the certificate, enforceable in that jurisdiction; and
(e)The order is not an excluded order; and
(f)There are reasonable grounds for believing that any of the following persons is ordinarily resident in, present in, or proceeding to, Australia:
(i)The child who is the subject of the order;
(ii)A parent of that child;
(iii)A person having the right to have the child live with him or her, or the right of custody or access to the child, or the right to spend time or communicate with the child.
If all of the above matters are satisfied the Court may register the order, which implies the Court retains an overriding discretion.
Is the County K order an ‘overseas child order’?
As the County K order was made prior to the child’s birth the question arises as to whether or not the order can be an overseas ‘child’ order when, at the time the order was made, the child was not yet born.
The applicants rely on three cases to support the submission that the County K order is an ‘overseas child order’ despite the fact of it being made prior to the birth of the child. Given that these three cases were also relied upon to support the same submission in my recent decision of Rose[7], I set out the relevant parts of that judgment:
[7] [2018] FamCA 978.
23. The first is a decision of her Honour Justice Ryan of this Court, sitting at first instance, in Carlton & Bissett. That case concerned an application for a declaration that the applicant’s life partner was a parent of two year old children and for an order for equal shared parental responsibility in favour of the applicant (who was not related to the children) and his partner, in circumstances where registration of an overseas order was not an option because the overseas country was not a prescribed jurisdiction. The overseas order, made a month prior to the birth of the children, ratified a surrogacy agreement transferring all parenting rights to the applicant and the ratification occurred prior to the child’s birth. In obiter, Ryan J considered that the order satisfied the requirement for there to be an ‘overseas child order’. The decision contains no argument in relation to the issue and was not a necessary finding for the purposes of the application before the Court.
24. The second decision relied upon is Re: Halvard and Anor, a decision of his Honour Justice Forrest which was a case similar to the one at hand in that it concerned an application to register an order made in a prescribed overseas jurisdiction and the order was made prior to the birth of the child.
25. When considering whether or not the order was an ‘overseas child order’ his Honour posed two questions:
14. Is the order an “overseas child order”? In this particular case that question is best determined, in my view, by asking this further question – “However expressed, does it have the effect of determining the person or persons with whom a child who is under 18 is to live or as to which person or persons are to have custody of a child who is under 18?”.
26. Forrest J found that the order was an ‘overseas child order’ within the meaning of s 4(1) of the Act because it had the effect of determining with whom the child, now the subject of the proceedings, should live and the persons who were to have custody of the child. His Honour stated that on the face of the overseas order there could be no doubt about the applicability of the order to the child in question, although not born at the time of the order.
27. The third case relied upon is Re: Grosvenor, also a decision of Forrest J and also involving an application to register a pre-birth order made in a prescribed overseas jurisdiction. His Honour applied the same reasoning as he did in Re: Halvard and Anor to conclude that the order was an ‘overseas child order’.
28. With respect to his Honour, I do not consider that the second question answers the first and, in my respectful view, the requirement to be satisfied that the ‘child’ is a child for the purposes of the definition of ‘overseas child order’ is one that has to be decided separately.
29. His Honour Justice Watts in Lee & Hutton helpfully reviews a number of relevant authorities pertinent to this issue although not concerned with registration of an overseas child order. Watts J was considering a jurisdictional fact necessary to form the basis of a property application between a separated de facto couple i.e. whether there was a child of the de facto relationship. In that case there had been two pregnancies but no live births. Watts J commences with a consideration of the High Court authority of Brown v Brown in which it was held that a court had jurisdiction to make an order for child maintenance although at the time of the original order the child was not yet born. Lindenmayer J (as he then was) considered Brown & Brown in the decision of In the Marriage of Diessel and observed that “the basis upon which they did so is not clear, and none of the learned judges undertook any analysis of the section or of the Act nor approached the matter as if it involved a question of interpretation.” Lindenmayer J did not consider himself bound by the decision because it concerned an entirely different statute and in an entirely different context. His Honour was considering whether or not he was required to consider whether satisfactory arrangements had been made for children of the marriage prior to granting a divorce and found that an unborn child did not fall within the definition of ‘child’ for the purposes of that consideration. It is clear that his Honour’s conclusion was founded on the interpretation of particular statutory provisions which were held to be inconsistent with a meaning other than a ‘child’ who is born. As Lindernmayer J held in Diessel:
…the expression “who have not attained the age of 18 years” in conjunction therewith suggests that “children” means living or born children, since a child's age is invariably measured from its birth not from its conception.
30. A further authority considered by Watts J is In the marriage of F and F where a husband applied for an injunction to prevent his wife terminating a pregnancy. Lindenmayer J rejected the notion that the jurisdiction to grant an injunction to protect the welfare of a child could include an unborn child, and held inter alia:
… In my opinion, the only section of the Act in which the word "child" includes an unborn child is s.66X, which deals with the maintenance of a mother by the father of an illegitimate child during the childbirth maintenance period.
And
…In my opinion, as a foetus has no legal personality it is, in law, a non-person, and it therefore cannot have an inchoate legal right any more than it can have a fully developed one.
31. In the more recent decision of Talbot & Norman Murphy J agreed with the reasoning of Lindenmayer J in holding that the Court lacked jurisdiction to enjoin a woman from undergoing a termination to protect the welfare of a child because the term ‘child’ means a child once born. Murphy J noted that his conclusion was consistent with common law and cited a number of authorities.
32. Watts J suggests that the apparent tension between the pronouncement of the law by the High Court in Brown on the one hand and Family Court first instance decisions in Diessel, F and F and Talbot & Norman is more illusory than real (my words) because in Brown, “any order made for child maintenance in relation to the child that was in utero was an order that only had effect once the child was born. Looked at in that way, their Honours’ approach would be consistent with the common law notion in a number of areas of the law that a foetus or embryo can be treated as a person if there is a benefit that that person obtains once born.” By way of analogy his Honour then considers the rights of the unborn child (upon birth) to receive damages for personal injury caused by negligence and the rights of an unborn child (upon birth) to inherit. Watts J concludes that where the child is to receive a benefit upon birth the law creates a legal fiction that recognises the unborn child as a person with rights. His Honour also considers that the injunctions sought in F and F and Talbot & Norman might have been granted if “the ability to be born was a benefit to the foetus.” His Honour acknowledges that “in criminal and coronial law, the “born alive” rule holds that “for a foetus to achieve legal personhood, the infant must have been born alive” but concludes that the term child can have different meanings in different parts of the Act. Ultimately, his Honour concludes that, for the purposes of s 90SB(b) of the Act, the reference to a child does not include an unborn child.
33. The effect of the [C order] is to confer sole parenting and parentage rights upon the applicant. If such an application were made under a surrogacy arrangement entered into in Queensland (where this application for registration has been filed) the applicable law would be found in either the Surrogacy Act 2010 (Qld) or under the Family Law Act 1975 (Cth). The Surrogacy Act does not permit an order to be made unless the child has been living with the applicant for a minimum of twenty-eight days and in my view, the jurisdiction to make such an order under the Family Law Act also requires the child to be a born child.
34.However, there is distinction to be drawn between the present case and the cases and legislation discussed above. The present case is not concerned with the jurisdiction to make an order. The order has already been made. The application comes before me when the child has been born. There can be no doubt that the [C order] concerns the child in question, the child is under the age of eighteen years and it determines the person with whom the child is to live.
(Footnotes omitted)
I adopt the reasoning in Rose and accordingly, I am satisfied that the County K order is an overseas child order.
Is State J a prescribed overseas jurisdiction?
State J is a prescribed overseas jurisdiction as set out in column 2 of Schedule 1A to the Regulations.
Is a certified copy of the order produced?
The County K order is produced and certified as a true and correct copy of the order entered on 26 April 2017 in Case Number …, truly taken and copied State J by a Clerk of Combined Court County K.
Is there a certificate from an officer of a court or some other authority stating the County K order is enforceable?
Sub-reg 23(1)(a)(ii) requires the production of:
a certificate signed by an officer of a court or by some other authority in that jurisdiction relating to the order and containing a statement that the order is, at the date of the certificate, enforceable in that jurisdiction.
The applicants purport to address this requirement by asserting that the order is “current” and rely upon an affidavit from the attorney who acted on their behalf in the County K District Court proceedings in Country L. The submissions also assert that the lawyer is an officer of the court for the purposes of the regulation.
No authority or regulatory provision is cited to support the submissions. There is no definition of ‘officer of a court’ in the Act or Regulations. While lawyers in Australia are officers of the court in which they are admitted to practice I do not consider that to be relevant for the purposes of reg 23. I do not know if a similar provision is contained in legislation in the overseas jurisdiction but even if it is I am not satisfied that a lawyer’s certificate is what is required. It seems to me to require something carrying the authority of a court in the jurisdiction in which the order was made.
Even if the applicant’s overseas lawyer is an officer of a court (for the purposes of reg 23), and I am not so satisfied, her affidavit does not address enforceability. It contains no statement that the County K order is, at the date on which the affidavit was sworn, enforceable in that jurisdiction. While her affidavit does state that the County K order remains in place as a final order as at 16 May 2017 I am not convinced that such a statement is synonymous with enforceability. Without it, the discretion to register does not arise.
In the event that I am incorrect in my interpretation I proceed to consider the remaining requirements of reg 23 and the discretionary factors.
Is the County K order an ‘excluded order’?
The County K order is not an interim order and all interested parties were involved in the petition.
Although there has been no evidence put forward about the anonymous egg donor I am satisfied that no consent from her is required given that the County K orders made no reference to her or the need for her consent. She is of course anonymous.
Accordingly, the County K order is not an excluded order.
Are the applicants and/or the child ‘ordinarily resident in, present in or proceeding to’ Australia?
This requirement is easily satisfied by the fact that the applicants and the child are resident in and present in Australia.
Overriding Discretion
In the event that I am wrong in finding that no enforceability certificate has been produced, I would nevertheless decline to exercise my discretion in favour of registration of the County K order because I am not satisfied that the agreement is not a commercial surrogacy. This is of significance because in Queensland (where registration is sought) commercial surrogacy arrangements are prohibited, attracting penalties of up to three years imprisonment.[8] Commercial surrogacy is also prohibited in Victoria, where the applicants reside.[9]
[8] Surrogacy Act 2010 (QLD), s 56.
[9] Assisted Reproductive Treatment Act 2008 (Vic), s 44 which provides penalties including imprisonment of up to 2 years.
A commercial surrogacy is defined in the Surrogacy Act 2010 (Qld)[10] as:
A surrogacy arrangement is a
"commercial surrogacy arrangement" if a person receives a payment, reward or other material benefit or advantage (other than the reimbursement of the birth mother’s surrogacy costs) for the person or another person—
(a) agreeing to enter into or entering into the surrogacy arrangement; or
(b) permanently relinquishing to 1 or more intended parents the custody and guardianship of a child born as a result of the surrogacy arrangement; or
(c) consenting to the making of a parentage order for a child born as a result of the surrogacy arrangement.
[10] See ss 10 and 11 and also s 44 of the Assisted Reproductive Treatment Act 2008 (Vic).
A birth mother’s surrogacy costs are defined as:
(1) A
"birth mother’s surrogacy costs" are the birth mother’s reasonable costs associated with any of the following matters—
(a) becoming or trying to become pregnant;
(b) a pregnancy or a birth;
(c) the birth mother and the birth mother’s spouse (if any) being a party to a surrogacy arrangement or proceedings in relation to a parentage order.
(2) Without limiting subsection (1), the following amounts are a birth mother’s surrogacy costs—
(a) a reasonable medical cost for the birth mother associated with any of the matters mentioned in subsection (1);
Example: a cost incurred before conception if the birth mother consults a medical practitioner to find out if she is capable of carrying a pregnancy before undergoing a fertilisation procedure
(b) a reasonable cost, including a reasonable medical cost, for a child born as a result of the surrogacy arrangement;
(c) a premium payable for health, disability or life insurance that would not have been obtained by the birth mother if the surrogacy arrangement had not been entered into;
(d) a reasonable cost of counselling associated with any of the matters mentioned in subsection (1), including—
(i) the cost of counselling obtained by the birth mother or the birth mother’s spouse (if any) before or after entering into the surrogacy arrangement; or
(ii) the cost relating to the preparation of a surrogacy guidance report under section 32;
(e) a reasonable legal cost for the birth mother and the birth mother’s spouse (if any) relating to the surrogacy arrangement and the transfer of parentage;
(f) the value of the birth mother’s actual lost earnings because of leave taken—
(i) for a period of not more than 2 months during which a birth happened or was expected to happen; or
(ii) for any other period during the pregnancy when the birth mother was unable to work on medical grounds;
(g) another reasonable cost associated with the surrogacy arrangement or the making of the order transferring parentage.
Example:
• travel and accommodation costs for a birth mother who lives interstate and travels to Queensland to undertake a fertility treatment, to consult with an obstetrician or to give birth
• travel and accommodation costs associated with a birth mother’s attendance at a court hearing about an application for a parentage order if the birth mother does not live near the court
(3) In this section—
"legal cost" includes fees for obtaining legal advice and legal representation, court fees, and registry fees associated with registration of a birth and transfer of parentage.
"medical cost" means a medical cost to the extent that it is not recoverable under Medicare or any health insurance or other scheme.
The agreement entitles the gestational carrier to certain payments such as fees and expenses for legal, medical, psychological and other miscellaneous expenses and states that payments are not to be construed as a fee for termination of the gestational carrier’s parental rights or compensation for services. However, I do not regard such statements of limitation as determinative. It is necessary to consider the types of payments and the circumstances in which they are made in order to assess whether they may conflict with the prohibition both in Queensland and Victoria (where the applicants live) of commercial surrogacy arrangements. If they do, I consider that to be a discretionary factor relevant to the exercise of the discretion to register the County K order.
In addition to the payment of medical, legal and ancillary costs and expenses the agreement provides for the payment of a capped sum of $36,500 for “discomfort pain, suffering, inconveniences, for pre-pregnancy and pre-birth child support expenses, for unreimbursed pregnancy expenses and post-birth expenses including reasonable and necessary living expenses”.[11] There is also provision for payment of up to 7 days of lost wages of the gestational carrier’s husband in certain circumstances.
[11] See the agreement, exhibit A.
The quantum paid under the agreement together with the description provided for some of the payments e.g. necessary living expenses, appear to well and truly fall into the category of a ‘payment, reward or other material benefit or advantage’ that is directly related to the entering into the agreement. The payments do not necessarily fall within the definition of a birth mother’s surrogacy costs and the submissions relied upon by the applicants leave open the prospect that the surrogacy agreement is of a commercial nature. Indeed the submissions rely on authorities where registration of an overseas child order has been made notwithstanding the commercial nature of the agreement involving payments similar in nature to those paid in this case.[12]
[12]Re: Grosvenor [2017] FamCA 366; Sigley & Sigley (2018) 57 Fam LR 347.
An application to register an overseas child order that may arise out of a prohibited commercial surrogacy arrangement conflicts with the clear prohibition of such arrangements in Queensland and Victoria. To register an order which recognises a commercial surrogacy would be contrary to public policy because it would give curial approval to something that is prohibited by law. There are no competing public policy considerations in this case such as the child being in need of protection.
Finally, despite the applicants addressing at length matters such as legitimate expectation, best interests of the child and guardianship/inheritance certainty, I am not persuaded that such arguments override the matters already discussed.
Accordingly, I decline to exercise my discretion to register the order.
CONCLUSION
The application to register the County K order is dismissed.
There are a number of factors that are pre-requisites to registration and even when the pre-requisites are met the Court retains a discretion about whether or not to register the order.
In this case, one of the pre-requisites is not met, namely, an enforceability certificate has not been produced. Secondly, I am not satisfied that the agreement between the applicants and the gestational carrier is not a commercial surrogacy. Given the illegality of commercial surrogacy agreements when entered into in both Queensland and Victoria, I am not prepared to exercise my discretion to register the County K order because to do so would be contrary to public policy.
ANONYMITY
The applicants’ solicitor states that the applicants have no difficulty with an order protecting their and their child’s identity including an order preventing a person from searching the court file without prior leave of the Court. As the Act already prevents a search of court files without a proper basis,[13] I see no need to make an order to that effect.
[13] Family Law Rules 2004 (Cth), r 24.13.
The applicants also request that care be taken when anonymising the judgment. All judgments of this Court are published but prior to publication they are anonymised to protect the identity of the parties and children.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 11 December 2018.
Associate:
Date: 11 December 2018
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