C v B
[2013] NSWSC 254
•27 March 2013
Supreme Court
New South Wales
Medium Neutral Citation: C v B [2013] NSWSC 254 Hearing dates: In chambers Decision date: 27 March 2013 Jurisdiction: Equity Division - Adoption List Before: White J Decision: Orders in accordance with the short minutes of order.
Catchwords: FAMILY LAW & CHILD WELFARE - application for parentage order under Surrogacy Act 2010 - applicant not resident in NSW contrary to s 32 - substitute parentage order not available in Victoria as child was not conceived as a result of procedure carried out in Victoria - exceptional circumstances justifying making the parentage order pursuant to s 18(2)(b) - child conceived as result of procedures in NSW where parents resident in Victoria an exceptional circumstance Legislation Cited: Surrogacy Act 2010 (NSW)
Status of Children Act 1974 (Vic)Category: Principal judgment Parties: C (Plaintiff)
B (Defendant)Representation: Counsel:
Solicitors:
Robb & Associates Solicitors (Plaintiffs)
Rama Myers Family Lawyers (Defendant)
File Number(s): 2013/55774
Judgment
HIS HONOUR: This is an application for a parentage order under the Surrogacy Act 2010 (NSW). I am satisfied that it is in the best interests of the child for the parentage order to be made.
Because the surrogacy arrangement was made before the commencement of the Surrogacy Act it is not an obstacle to the making of a parentage order that, so far as appears, legal advice was not given to all of the parties to the surrogacy arrangement at the time the surrogacy arrangement was entered into.
The application was made within two years of the commencement of the Surrogacy Act.
Section 32 of the Surrogacy Act provides that the applicant or applicants for the parentage order must be resident in New South Wales at the time of the hearing of the application. That is a pre-condition to the making of the order, but it is not expressed to be a mandatory pre-condition. Accordingly, pursuant to s 18(2)(b) a parentage order can be made if the Court is satisfied that there are exceptional circumstances that justify the making of the order despite the pre-condition in s 32 not having been met.
I am so satisfied. The exceptional circumstance is that the applicant and her husband live approximately 22 kilometres from Albury. They and the birth mother (the applicant's sister) sought treatment in Albury from a doctor specialising in reproductive medicine. The child was born in a hospital in Wodonga. The parties all reside in Victoria.
Victoria, like New South Wales, has legislation for the making of substitute parentage orders where a child is born pursuant to appropriate surrogacy arrangements. Pursuant to s 20(1)(a) of the Status of Children Act 1974 (Vic) the "commissioning parents" of a child born under a surrogacy arrangement can only apply to a Victorian court for a substitute parentage order if the child was conceived as the result of a procedure carried out in Victoria and the commissioning parents live in Victoria at the time of making the application. The plaintiffs have received legal advice that as the procedure that resulted in the child's being conceived was carried out in New South Wales, they could not make an application for a substitute parentage order in Victoria.
The fact that the procedures that resulted in the child's being conceived took place in New South Wales, although the parties were resident in Victoria (and remain so), is an exceptional circumstance that justifies the making of the parentage order despite the pre-condition in s 32 not having been met.
For these reasons I make orders in accordance with the short minutes of order that I have signed and placed with the papers.
Decision last updated: 27 March 2013