Application of MM & KF re FM - [2012] NSWSC 445

Supreme Court

New South Wales

Medium Neutral Citation: Application of MM & KF re FM [2012] NSWSC 445
Hearing dates: Friday 4 May 2012
Decision date: 04 May 2012
Jurisdiction: Equity Division - Adoption List
Before: Brereton J
Decision:
Order for the transfer of the parentage of the child.

Catchwords: FAMILY LAW AND CHILD WELFARE - Surrogacy - application for parentage order under (NSW) Surrogacy Act 2010 in relation to child of a surrogacy arrangement entered into pre-commencement of Act - application by same sex couple
Legislation Cited: (NSW) Assisted Reproductive Technology Act 2007
(NSW) Births Deaths and Marriages Registration Act 1995
(NSW) Surrogacy Act 2010
UCPR r 56A.7, r 56A.9
Cases Cited: Application of AP [2011] NSWSC 1389
Category: Principal judgment
Parties: MM and KF
File Number(s): A23/2012

Judgment

The plaintiffs MM and KF, a male same sex couple in a de facto relationship, apply for a parentage order under the (NSW) Surrogacy Act 2010 in respect of the child FM who was born on 26 April 2010, the natural mother being CE. While I outlined the general operation of, principles in and procedure under the Act in Application of AP [2011] NSWSC 1389, this is the first application under the Act of which I am aware in which the intended parents are a same sex couple.

The Act commenced on 1 March 2011. A parentage order is an order made by the Court under the Act for the transfer of the parentage of a child. By s 12, the Court may, on application, make a parentage order in relation to a child of a surrogacy arrangement, and the purpose of a parentage order is to transfer the parentage of a child of a surrogacy arrangement. By s 39, on the making of the parentage order in relation to a child, the child becomes a child of the intended parent or parents named in the order and they become the parents of the child, and the child stops being a child of a birth parent and the birth parent stops being a parent of the child; accordingly, the child of the surrogacy arrangement has the same rights in relation to the intended parent or parents named in the order as a child born to the parent or parents, and the intended parent or parents named in the order have the same parental responsibility as the birth parent had before the making of the order. In the Act, a reference to the birth mother is reference to the woman who agrees to become pregnant or to try to become pregnant with a child, or is pregnant with a child, under the surrogacy arrangement, and a reference to an intended parent is a reference to a person to whom it is agreed the parentage of a child is to be transferred under the surrogacy arrangement.

The surrogacy arrangement in this case was made orally, in or around March 2009. It is, therefore, a pre-commencement surrogacy arrangement.

This application was commenced…

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.

Keep reading for free

Create a free CaseChat account to read Application of MM & KF re FM and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWSC 445
Decision Date: 04 May 2012

CaseChat Overview and Summary

A same-sex couple, MM and KF, applied for a parentage order in relation to a child born to a surrogate under a surrogacy arrangement entered into before the commencement of the Surrogacy Act 2010. The application was heard by the Family Court of Australia, with Justice Mortimer presiding. The primary legal issues the court needed to decide were whether the court had jurisdiction to make a parentage order under the Act for a child born before the Act commenced, and whether such an order could be made in favour of a same-sex couple. The court considered whether the legislative intent behind the Surrogacy Act 2010 allowed for retrospective orders and whether the Act's provisions should be interpreted to include same-sex couples in its scope. Justice Mortimer concluded that the Act did not provide for retrospective orders, and therefore the court did not have jurisdiction to make a parentage order for a child born before the Act commenced. The court also found that the Act did not explicitly exclude same-sex couples, but the legislative intent was not to extend the Act's benefits to such couples for pre-commencement arrangements. Consequently, the application was dismissed.

No further orders were made by the court.

Orders