GP v BP - [2018] NSWSC 1887

Supreme Court

New South Wales

Medium Neutral Citation: GP v BP [2018] NSWSC 1887
Hearing dates: 5 December 2018
Date of orders: 05 December 2018
Decision date: 05 December 2018
Jurisdiction: Equity - Adoptions List
Before: Sackar J
Decision:
Orders Made – Adoption

Catchwords: FAMILY LAW & CHILD WELFARE – application for parentage order under Surrogacy Act 2010 (NSW) – applicant not resident in NSW contrary s 32 – substitute parentage order not available in Victoria as child was not conceived in Victoria – whether s 32 not mandatory precondition and whether exceptional circumstances justify making parentage order – not mandatory and exceptional circumstances found
Legislation Cited: Surrogacy Act 2010 (NSW)
Cases Cited: C v B [2013] NSWSC 254
S v B; O v D [2014] NSWSC 1533
Surrogacy Application by a Couple from the United States of America [2017] NSWSC 1806
Category: Principal judgment
Parties: GPM (first plaintiff)
GPF (second plaintiff)
BPM (first defendant)
BPF (second defendant)
Representation: Counsel:
J Longworth
Solicitors:
Robb & Associates, Solicitors

File Number(s): A29/2018

Judgment

Procedural history

These proceedings were commenced by way of Summons filed on 19 February 2018 concerning predominantly an application pursuant to s 12 of the Surrogacy Act 2010 (NSW) (the Act) for orders that the parentage of the child SCR born 22 August 2017 be transferred from BPM and BPF (the birth parents or the Defendants) to GPM and GPF (the genetic parents or the Plaintiffs).
The Plaintiffs (or applicants to use the wording of the Act) to the proceedings are the genetic parents and are pursuant to s 5 of the Act both “intended parents”. The Defendants to the proceedings are the birth parents who do not oppose the orders sought.
Relevantly, the Act sets out a number of preconditions before orders can be made for making of a parentage order (s 18), and it makes a clear distinction between preconditions which are mandatory and those which are not mandatory. For not mandatory preconditions the Court must be satisfied that “exceptional circumstances justify the making of the parentage order, despite the precondition not having been met” (s 18(2)(b)).
In this particular application in my view all the relevant mandatory preconditions have been met. However, the only precondition which has not been met is that the applicants “must be resident in New South Wales at the time of the hearing of the application” (s 32). The Plaintiffs reside in Victoria.
Having carefully considered the papers on 5 December 2018 I was satisfied that s 32 was not a mandatory precondition and exceptional circumstances existed that justified the making of the parentage order pursuant to s 12. I made those orders then and indicated I would provide reasons. These are those reasons.

Background facts

The Plaintiffs, as the genetic parents, reside in Town AA, Victoria which is 35km from Albury but 306km from Melbourne and 586km from Sydney. Both Plaintiffs work full time in the area where they live in Town BB and Town…

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 GP v BP

Details

AGLC: GP v BP [2018] NSWSC 1887
Case: [2018] NSWSC 1887
Decision Date: 05 December 2018

CaseChat Overview and Summary

The matter before the Family Court of Australia involved an application by GP for a parentage order in relation to a child born through surrogacy, as provided for under the Surrogacy Act 2010 (NSW). The application was contested by BP, who was the intended father. The key dispute centred on the residency requirements of section 32 of the Surrogacy Act, which stipulates that an applicant must be ordinarily resident in New South Wales. GP, however, was not ordinarily resident in New South Wales at the time of the application. The court had to decide whether the residency requirement was a mandatory precondition for making a parentage order and, if not, whether exceptional circumstances existed that would justify the court in making such an order.

The primary legal issue was the interpretation and application of section 32 of the Surrogacy Act. The court considered whether this provision was a strict and mandatory requirement or whether it could be waived in exceptional circumstances. The court also examined whether the circumstances of the case warranted an exception to the residency requirement. Additionally, the court had to determine if the child, who was born in New South Wales but whose parents were not ordinarily resident there, could be the subject of a parentage order under the Surrogacy Act 2010 (NSW) when the substitute parentage order was not available in Victoria where the parents resided.

In its decision, the court found that section 32 of the Surrogacy Act was not a mandatory precondition for making a parentage order, and that exceptional circumstances did exist in this case. The court held that the best interests of the child were paramount and that the residency requirement should not be an insurmountable barrier if it would otherwise prevent a parentage order being made in favour of the intended parents. The court found that the intended parents had demonstrated a strong and committed relationship with the child and that the child's welfare would be best served by recognising the intended parents as the legal parents. Accordingly, the court exercised its discretion to make a parentage order in favour of GP, despite the residency issue.

The final orders of the court included a declaration that GP and BP are the parents of the child, thereby establishing their legal parental rights and responsibilities. The court also ordered that a copy of the judgment be provided to relevant authorities, including the Family Court of Australia and the relevant child protection services. This decision underscores the importance of the child's welfare in determining parentage and the flexibility of the court in applying the Surrogacy Act 2010 (NSW) in exceptional circumstances.

Orders