Application by JSC & RSC - [2013] NSWSC 440

Supreme Court

New South Wales

Medium Neutral Citation: Application by JSC & RSC [2013] NSWSC 440
Hearing dates: IN CHAMBERS
Decision date: 30 April 2013
Jurisdiction: Equity Division - Adoption List
Before: Hallen J
Decision:
Order for the transfer of the parentage of the child.

Catchwords: FAMILY LAW AND CHILD WELFARE - Surrogacy - Application for parentage order under Surrogacy Act 2010 in relation to child of a surrogacy arrangement entered into after the commencement of Act - Application by married couple - Court may make parentage order upon compliance with preconditions provided by the Act and by UCPR Part 56A - Satisfaction of certain preconditions - Relevant preconditions specified are mandatory - Other non-mandatory preconditions may be waived if exceptional circumstances exist - UCPR rule 56A.9 - Insufficient evidence of legal advice given in present case - Subsequently provided - Court able to make parentage order
Legislation Cited: Civil Procedure Act 2005
Surrogacy Act 2010
Uniform Civil Procedure Rules
Cases Cited: Application of AP [2011] NSWSC 1389
Application of MM & KF, Re [2012] NSWSC 445
Lowe v Barry [2011] FAMCA 625
Texts Cited: P Langan, Maxwell on Interpretation of Statutes, 12th ed (1969), Sweet & Maxwell
Category: Principal judgment
Parties: JSC and RSC and CAG and CIG
File Number(s): 201/2012

Judgment - IN Chambers

The Background

HIS HONOUR: The Plaintiffs, JSC and RSC, a married couple, as intended parents, apply for a parentage order, under the Surrogacy Act 2010 ("the Act"), in respect of the child HR, who was born in June 2012. In the proceedings, the birth mother, CAG, and her husband, CIG, are named as the Defendants.

The Plaintiffs' application has been dealt with in Chambers, in the absence of the public and without any attendance by, or on behalf of, the parties: Uniform Civil Procedure Rules ("UCPR") rule 56A.4(1). Neither of the parties had made an application for a preliminary hearing which would prevent this occurring.

However, for reasons to which I shall come, it is necessary to publish these reasons to avoid other parties having the same deficiency in evidence and the consequent delay, that has occurred in this case. The deficiency of evidence has now been remedied. Hopefully, legal representatives of other parties making an application of this type will ensure that all of the mandatory preconditions specified in the Act and the evidence required by the UCPR are satisfied.

The Law

The Act commenced on 1 March 2011. A parentage order is defined in s 4 of the Act as an order made by the court under the Act for the transfer of the parentage of a child.

Section 5 of the Act defines "surrogacy arrangement" as:

"(a) an arrangement under which a woman agrees to become or to try to become pregnant with a child, and that the parentage of the child born as a result of the pregnancy is to be transferred to another person or persons (a "pre-conception surrogacy arrangement"), or

(b) an arrangement under which a pregnant woman…

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 Application by JSC & RSC

Details

AGLC: Application by JSC & RSC [2013] NSWSC 440
Case: [2013] NSWSC 440
Decision Date: 30 April 2013

CaseChat Overview and Summary

The case involved an application for a parentage order under the Surrogacy Act 2010, concerning a child born from a surrogacy arrangement. The applicants, a married couple, sought to be recognised as the legal parents of the child. The matter was heard in the Family Court of Australia. The primary legal issue before the court was whether the applicants had satisfied the mandatory preconditions required by the Surrogacy Act 2010 and the Uniform Civil Procedure Rules 2005 (UCPR) Part 56A, necessary for the court to make a parentage order.

The court examined whether the applicants had complied with the mandatory preconditions specified by the legislation, including obtaining legal advice about their rights and obligations under the Act. The applicants initially failed to provide evidence of legal advice, but subsequently provided it. The court needed to determine if this non-compliance with the mandatory preconditions, despite subsequent compliance, was sufficient to prevent the making of the parentage order.

The court held that while the mandatory preconditions set out in the legislation were indeed mandatory, the failure to provide evidence of legal advice could be waived if exceptional circumstances existed. The court found that the applicants had provided sufficient evidence that they had subsequently obtained legal advice, and that there were exceptional circumstances warranting a waiver of the non-compliance. Consequently, the court was satisfied that all necessary preconditions had been met and it proceeded to make the parentage order, recognising the applicants as the legal parents of the child.

The final orders included the grant of a parentage order, recognising the applicants as the legal parents of the child, and any other orders necessary to effectuate the parentage order in accordance with the Surrogacy Act 2010.

Orders