Lloyd & Compton
[2025] FedCFamC1F 28
•28 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Lloyd & Compton [2025] FedCFamC1F 28
File number: BRC 10231 of 2024 Judgment of: CAREW J Date of judgment: 28 January 2025 Catchwords: FAMILY LAW – CHILDREN – Parenting orders – Surrogacy – Where an overseas commercial surrogacy arrangement has been entered – Where applicants are resident in Queensland – Where commercial surrogacy is prohibited in Queensland – Where the Surrogacy Act 2010 (Qld) applies extraterritorially – Where consideration is given to best practice principles – Where one of the applicants is the biological father of the child – Whether a parenting order is ‘proper’ –Where the proposed order is not in the best interests of the child – Where to make an order would circumvent the law in Queensland where commercial surrogacy is a criminal offence - Whether referral should be made to the Office of the NSW Legal Services Commissioner – Whether referral should be made to the Office of the Director of Public Prosecutions Queensland Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60G, 60H, 60HB, 61B, 64B, 64C, 65C(a), 65C(c), 65D, 65DAA
Family Law Regulations 2024 (Cth) reg 49
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 25
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.10
Adoption Act 2009 (Qld)
Surrogacy Act 2010 (Qld) ss 13, 21, 22, 54, 56
United Nations Convention on the Rights of the Child
Cases cited: Aldridge v Keaton (2010) 42 Fam LR 369
Bernieres & Dhopal (2015) FamCA 736
Bernieres & Dhopal (2017) 57 Fam LR 149
Dudley & Chedi [2011] FamCA 502
Findlay v Punyawong [2011] FamCA 503
Mankiewicz & Swallow [2014] FamCA 579
Masson & Parsons (2019) 266 CLR 554
Seto v Poon [2021] FamCA 288
Number of paragraphs: 76 Date of last submission: 18 December 2024 Date of hearing: Determined in Chambers Place: Brisbane Solicitor for the Applicants: Sun Legal Solicitor for the Respondent: Sarah Bevan Family Lawyers ORDER
BRC 10231 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LLOYD
First Applicant
MR LLOYD
Second Applicant
AND: MS COMPTON
Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
28 JANUARY 2025
THE COURT ORDERS THAT:
1.The Initiating Application filed on 29 July 2024 be dismissed.
2.The Principal Registrar of the Federal Circuit and Family Court of Australia (Division 1) refer the following documents to the Office of the Director of Public Prosecutions Queensland for consideration of whether the applicants should be prosecuted under section 56 of the Surrogacy Act 2010 (Qld):
(a)Initiating Application filed 29 July 2024;
(b)Affidavit of Ms Lloyd filed 29 July 2024;
(c)Affidavit of Mr Lloyd filed 29 July 2024;
(d)Affidavit of Ms Compton filed 6 September 2024;
(e)Reasons for Judgment by the Honourable Justice Carew dated 28 January 2025;
(f)Order dated 28 January 2025.
3.The Principal Registrar of the Federal Circuit and Family Court of Australia (Division 1) refer the following documents to the Office of the NSW Legal Services Commissioner for consideration of what if any investigation is conducted as to whether a legal practitioner, Ms B, has complied with her obligations as a legal practitioner by procuring and filing affidavits on behalf of her clients, the applicants in these proceedings, in which they admit to facts which establish an offence under s 56 of the Surrogacy Act 2010 (Qld) and whether she has otherwise breached her obligation to provide competent legal services:
(a)Initiating Application filed 29 July 2024;
(b)Affidavit of Ms Lloyd filed 29 July 2024;
(c)Affidavit of Mr Lloyd filed 29 July 2024;
(d)Affidavit of Ms Compton filed 6 September 2024;
(e)Reasons for Judgment by the Honourable Justice Carew dated 28 January 2025;
(f)Order dated 28 January 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
X (“the child”) is a baby boy born in Cyprus[1] in 2024 pursuant to a commercial surrogacy agreement between C Ltd, a company purportedly registered under the law of Country E, and Ms Lloyd (“the first applicant”) and Mr Lloyd (“the second applicant”).
[1] The applicants refer to the country of birth as the Turkish Republic of Northern Cyprus. Australia does not recognise the Turkish Republic of Northern Cyprus. Australia supports the sovereignty and territorial integrity of the Republic of Cyprus and recognises the Republic as the only legitimate authority on the island.
The applicants are applying for a parenting order as defined by s 64B of the Family Law Act 1975 (Cth) (“the Act”) for parental responsibility and for the child to live with them. In addition, the applicants are applying for leave to commence adoption proceedings pursuant to s 60G of the Act. The respondent to the application is the surrogate mother, Ms Compton (“the surrogate”), and she has filed an affidavit and a submitting notice and does not wish to be further heard in the proceedings.
When the matter came before me on 14 November 2024, it appeared that the complexities of the application and what issues needed to be addressed were not matters that had been adequately considered by the legal representatives for the applicants. For instance, there was no admissible evidence on the domestic law of Cyprus where the child was born pursuant to a commercial surrogacy arrangement, no proof of the Australian citizenship of the applicants, and no submissions were able to be made about the fact that commercial surrogacy is prohibited under Queensland law where this matter is being determined or the power of the Court to make a parenting order in the circumstances.
Under ss 54 and 56 of the Surrogacy Act 2010 (Qld) (“the Surrogacy Act”), it is a criminal offence punishable by up to three years imprisonment for persons usually resident in Queensland to enter into a commercial surrogacy arrangement outside Queensland. It is curious, to say the least, why the applicants have filed an application which will leave them to open to potential prosecution.
The application was adjourned to enable the applicants to file further material and written submissions. At their request, the matter was determined in Chambers in the absence of the parties.
Notwithstanding the requirements of r 1.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), many of the documents required to be filed in support of the application have not been filed.
On 18 December 2024, an additional affidavit was filed in the proceedings by Ms B, an Australian legal practitioner practising in New South Wales, and the legal representative for the applicants. In her affidavit, Ms B purports to give expert evidence as to the law of the “Turkish Republic of Northern Cyprus”. There is no evidence that Ms B has any expertise in the law of that country, e.g. that she is admitted to practice there, nor does her affidavit exhibit to it any of the legislation to which she refers.
Very brief written submissions were also filed by Ms B on 18 December 2024. In that document, it is asserted that the child has been granted Australian citizenship and issued with an Australian passport. No copies of either document, certified or otherwise, had been filed by close of submissions on 18 December 2024.
It is further asserted by Ms B that the child travelled to Australia with the applicants in late 2024. No updating affidavit from the applicants has been filed.
For the reasons which follow I propose to dismiss the Initiating Application. Although there may be good practical reasons for making the order sought, I cannot be satisfied on the evidence before the Court that the proposed order is in the best interests of the child. I am also concerned that to make the order sought by the applicants would act to circumvent the law in Queensland where commercial surrogacy is a criminal offence.
RELEVANT BACKGROUND
The applicants are purportedly a married couple. They have provided sworn evidence that they commenced living together in 2006 and married overseas in 2012. While I have no reason to doubt their sworn evidence, proof of their marriage should have been filed.
The first applicant is 52 years of age and employed at a Queensland educational institution earning $103,000 per annum pro rata.
The second applicant is 50 years of age and employed as an advisory trustee at the F Trust. There is no evidence about the trust, or its purposes. The second applicant does not receive a salary from the trust but rather reinvests it in the trust.
The applicants depose to their unsuccessful attempts to have a child for over 15 years including undergoing several rounds of IVF treatment. It is no doubt a sad circumstance for them. Although I have no reason to doubt their sworn evidence, corroborating evidence from a medical practitioner should have been filed.
The applicants are ordinarily resident in a two bedroom home in Brisbane, Queensland. It was anticipated that the first applicant would take three months maternity leave after the birth of the child. That time has passed. There is no evidence as to the current circumstances of the child or the applicants.
In mid-2023, the applicants entered into a commercial surrogacy agreement with C Ltd, as already noted a company purportedly registered in Country E. The only parties to that agreement are the applicants and C Ltd. Under the agreement, the applicants were to pay the company the sum of at least €84,000 (approximately $140,000 AUD) to make all necessary arrangements to, among other things, locate a surrogate, source anonymous donor eggs, arrange for fertilisation of the donor eggs with sperm provided by the second applicant, arrange for the implantation of an embryo in the surrogate, ensure the surrogate complied with certain requirements to ensure as far as a possible a healthy baby was born, and to make all necessary arrangements for the birth of the baby.
The applicants travelled to Cyprus in 2024 and the child was born in 2024. The birth certificate issued by the Turkish Republic of Northern Cyprus in 2024 names the second applicant as the father and the surrogate as the mother.
The surrogate is 37 years of age and deposes to having entered into a Surrogacy and Child‑Bearing Agreement with the applicants and C Ltd. A copy of that agreement is not before me. There is no evidence of what payment or other benefits the surrogate received for her part in the surrogacy arrangement. The surrogate is separately represented in the proceedings by a lawyer in New South Wales. The surrogate resides in Country G and speaks no English. Her native tongue is Country H language.
In 2023, the surrogate underwent a procedure where an embryo using the donor egg and the second applicant’s sperm was implanted. She gave birth to the child in 2024. The profile of the egg donor indicates she is of Country H nationality and was born in 2000.
Immediately prior to the surrogacy agreement being entered into the surrogate resided in a village in Country G and was not employed as she was the primary carer for her own three children aged 17, nine and six years. The surrogate does not have a spouse or partner and is a sole parent. It is unclear when she travelled to Cyprus, but she deposes of her intention to return to her home in Country G shortly after swearing her affidavit on 2 August 2024.
The surrogate deposes to meeting with a counsellor in 2023 arranged by C Ltd, prior to signing the surrogacy and childbearing agreement and to having obtained legal advice in 2023 arranged by C Ltd. It is curious that the surrogate is unable to provide an actual date upon which she received counselling and legal advice. Neither the counselling nor the legal advice could be considered independent having been arranged by C Ltd.
The surrogate deposes to having supplied her DNA for testing and expressed confidence that the results will confirm that “the maternity index results” will indicate that she has a 0.00 percent match with the child. No results of that DNA test are before me. The surrogate eschews any intention of having any contact or relationship with the child. She indicates her support for the first applicant pursuing step-parent adoption.
On 29 July 2024, the applicants filed an Initiating Application in the Federal Circuit and Family Court of Australia (Division 2) seeking the following order:
(1)The first and second applicants have joint decision making for the child, X born 2024.
(2)The child live with the first and second applicants.
(3)The child spend no time with the respondent.
(4)For the purposes of section 11 of the Australian Passports Act 2005 (Cth):
(a)The child, X born 2024 is permitted to have an Australian Passport or any other travel-related document.
(b)The child is permitted to travel internationally with the first and second applicants.
(c)The first and second applicants are permitted to obtain and renew the child’s Australian passport and/or any travel-related document in accordance with, and facilitation of the above orders, without the consent of the respondent.
(d)The first and second applicants may sign any declaration on the Application for an Australian Passport or travel-related document in the form approved by the relevant Minister without requiring the respondent’s consent.
(e)The respondent is restrained from making an application for an Australian Passport or travel-related document for the child.
(5)Pursuant to section 60G(1) of the Family Law Act 1975 (Cth), leave is granted to the first and second applicants to commence step-parent adoption proceedings in Queensland to enable the first applicant to formally adopt the child pursuant to the Adoption Act 2009 (QLD).
The Initiating Application represents that the applicants were present in Australia at the time of filing of the application. That is not the case. Contrary to the statement of truth provided by the applicants on page 21 of the Initiating Application, the applicants travelled to Cyprus in mid-2024 and were still there in late 2024 awaiting the issue of an Australian passport for the child. The applicants contend that they will be applying for Australian citizenship by descent for the child and will then apply for an Australian passport. Genetic testing confirms that there is a 99.99 percent chance that the second applicant is the biological father of the child.
I assume that paragraph one of the Initiating Application is intended to be an application for parental responsibility as defined by s 61B of the Act.
The applicants contend that the order sought in relation to the child’s passport is sought so that the surrogate’s consent is no longer required each time an application is made for a passport or its renewal for the child.
On 30 August 2024, the matter was transferred to this Court and listed before me for hearing on 14 November 2024. As the lawyers representing the applicants and the respondent are based in New South Wales and the applicants were at that time still in Cyprus, leave was granted for the hearing to take place via video link.
As earlier noted, the matter was adjourned to enable further material and written submissions to be filed.
ISSUES ARISING
There are a number of issues arising in this application. They are:
(1)Do the applicants have standing to apply for a parenting order?
(a)Are either or both applicants a parent for the purposes of s 65C(a) of the Act?
(b)If not, are either or both applicants a person concerned with the care, welfare or development of the child for the purposes of s 65C(c) of the Act?
(2)If the applicant/s do have standing, would it be proper to make the parenting order sought as one in the best interests of the child in circumstances and where, by their own admission, the applicants have committed a criminal offence under Queensland law?
(3)Are the applicants ‘prescribed adopting parents’ for the purposes of the application for leave to commence adoption proceedings?
(4)Should the applicants be referred to the Office of the Director of Public Prosecutions for consideration of whether they should be prosecuted for an offence under the Surrogacy Act?
(5)Should the applicants’ solicitor be referred to the Office of the NSW Legal Services Commissioner for consideration of whether she has met her professional obligations to provide competent legal services?
APPLICABLE LAW
A parenting order in relation to a child may be made in favour of a parent of the child or some other person (s 64C of the Act).
Relevantly, a parenting order may be applied for by a parent or any other person concerned with the care, welfare or development of the child (s 65C(a) and s 65C(c)).
In subdivision D of Division 1 of Part VII of the Act entitled “Interpretation – how this Act applies to certain children”, s 60HB provides:
Children born under surrogacy arrangements
(1) If a court has made an order under a prescribed law of a State or Territory to the effect that:
(a) a child is the child of one or more persons; or
(b) each of one or more persons is a parent of a child;
then, for the purposes of this Act, the child is the child of each of those persons.
A prescribed law for the purposes of s 60HB of the Act is defined by reg 49 of the Family Law Regulations 2024 (Cth) (“the Regulations”) and relevantly a prescribed law is one pursuant to s 22 of the Surrogacy Act. No order has been made under a prescribed law.
The Court may, subject relevantly to Division 6 of Part VII (which deals with parenting orders other than child maintenance orders), make such parenting order as it thinks proper (s 65D).
The objects of Part VII of the Act are set out in s 60B and are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the United Nations Convention on the Rights of the Child.
In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (s 65DAA and s 60CA).
The best interests of the child are determined by reference to the matters set out in s 60CC and include: arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child; the developmental, psychological, emotional and cultural needs of the child; the capacity of each person who has or will have parental responsibility to provide for the child’s needs; the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and in considering those matters, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
Rule 1.10 of the Rules applies to “surrogacy proceedings” and provides:
(1) This rule applies to applications for parenting orders in relation to a child who was born under a surrogacy arrangement if no final parenting order in relation to the child has been made under Part VII of the Family Law Act.
(2) The evidence in support of an application under this rule must include the following:
(a) a copy of the surrogacy agreement (if any), however described;
(b) evidence from each applicant that establishes the applicant’s personal circumstances, including those personal circumstances:
(i) at the time the surrogacy procedure took place; and
(ii) in the period immediately before the surrogacy arrangement was entered into; and
(iii) in the period immediately before conception; and
(iv) in the period immediately after the birth of the child and during subsequent arrangements for the care of the child;
(c) evidence from the surrogate mother that establishes the surrogate mother’s personal circumstances, including those personal circumstances:
(i) at the time the surrogacy procedure took place; and
(ii) in the period immediately before the surrogacy arrangement was entered into; and
(iii) in the period immediately before conception; and
(iv) in the period immediately after the birth of the child and during subsequent arrangements for the care of the child;
(d) evidence from the surrogate mother as to the following:
(i) whether the surrogacy arrangement was made with her informed consent;
(ii) whether she received counselling before entering into the surrogacy arrangement;
(iii) whether she received any legal advice before entering into the surrogacy arrangement;
(e) evidence regarding the surrogacy arrangement entered into between:
(i) the applicant and the surrogate mother; or
(ii)the applicant and the clinic (if any) at which the surrogacy procedure was performed; or
(iii) the applicant, the surrogate mother and the clinic (if any);
(f) evidence regarding the identity of the child, including:
(i) a certified copy of the child’s birth certificate;
(ii) a report, prepared in accordance with regulation 21M of the Family Law Regulations, relating to the information obtained as a result of carrying out a parentage testing procedure;
(iii) if the child is an Australian citizen—either a certified copy of the child’s Australian citizenship certificate, or if the child’s name is referred to on an Australian citizenship certificate issued to one of the child’s parents, a certified copy of the parent’s Australian citizenship certificate;
(iv) if an order of the kind referred to in subsection 60HB(1) of the Act has been made in relation to the child—a copy of the order;
(g) evidence regarding the law in the country where the child was born in relation to:
(i) surrogacy arrangements; and
(ii) the rights of the surrogate mother in relation to the child; and
(iii) the rights of the surrogate mother’s spouse (if any) in relation to the child.
Section 60G of the Act relevantly provides as follows:
(1)Subject to subsection (2), the Federal Circuit and Family Court of Australia (Division 2), … may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.
(2)In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child's best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.
Section 25 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) relevantly provides as follows:
(1)The Federal Circuit and Family Court of Australia (Division 1) has original jurisdiction:
(a)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Court under section 51—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(b)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Federal Circuit and Family Court of Australia (Division 2) under section 149—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(c)as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.
A “family law or child support proceeding” is defined in s 7 of the FCFCOA Act and means “proceedings in respect of which the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction under section 132”.
The original jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) relevantly includes “matters in respect of which proceedings may be instituted under the Family Law Act 1975”.
As earlier noted, the proceedings were transferred to this Court on and as such this Court has jurisdiction to consider the application.
A ‘prescribed adopting parent’ for the purposes of s 60G is defined in s 4 of the Act and means a parent of the child or the spouse or a parent or the parent and the spouse of the parent.
The Surrogacy Act relevantly provides:
54 Territorial application
This part applies in relation to-
(a)acts done in Queensland regardless of the whereabouts of the offender at the time the act is done; or
(b) acts done outside Queensland if the offender is ordinarily resident in Queensland at the time the act is done.
56 Commercial surrogacy arrangements prohibited
A person must not enter into or offer to enter into a commercial surrogacy arrangement.
Maximum penalty-100 penalty units or 3 years imprisonment.
DO THE APPLICANTS HAVE STANDING TO BRING AN APPLICATION FOR A PARENTING ORDER?
The applicants’ written submissions do not address this fundamental jurisdictional requirement.
‘Parent’ is not defined in the Act, but Subdivision D of Division 1 of Part VII of the Act defines how the Act applies to certain children.
In relation to children born under surrogacy arrangements, s 60HB of the Act applies and it provides:
(1) If a court has made an order under a prescribed law of a State or Territory to the effect that:
(a) a child is the child of one or more persons; or
(b) each of one or more persons is a parent of a child;
then, for the purposes of this Act, the child is the child of each of those persons.
(2) In this section:
this Act includes the applicable Rules of Court.
A prescribed law for the purposes of s 60HB of the Act is defined by reg 49 of the Regulations and relevantly a prescribed law is one pursuant to s 22 of the Surrogacy Act. Section 22 provides that a court (defined by s 13 to be the Children’s Court) may make a parentage order only if it is satisfied of various matters including that the applicants are entitled to apply for a parentage order under s 21. An application for a parentage order cannot be made if the surrogacy arrangement is a commercial surrogacy arrangement, as it is in this case. Accordingly, neither applicant is a parent within the meaning of s 60HB of the Act.
In Bernieres & Dhopal[2] (“Bernieres & Dhopal”), the Full Court of the Family Court of Australia (as this Court was then called) held that s 60HB “covers that field”. At [62], [65] of the judgment, the Full Court held:
62Thus, it is plain that s 60HB now specifically addresses the position of children born under surrogacy arrangements, leaving s 60H to address the status of children born by means of conventional artificial conception procedures. Further, the plain intention of s 60HB is to leave it to each of the States and Territories to regulate the status of children born under surrogacy arrangements, and for that to be recognised for the purposes of the Act. In other words, s 60HB covers that field, leaving, as we say, s 60H to address conventional artificial conception procedures.
…
65There is no question that the father is the child’s biological father, but that does not translate into him being a parent for the purposes of the Act. Further, the mother is not even the biological mother, and thus is even less likely to be the “legal parent”.
[2] (2017) 57 Fam LR 149.
No submissions were made about the effect, if any, of the subsequent decision of Masson & Parsons[3] where the High Court of Australia held at [26], [44]:
26… Although the Family Law Act contains no definition of “parent” as such, a court will not construe a provision in a way that departs from its natural and ordinary meaning unless it is plain that Parliament intended it to have some different meaning. Here, there is no basis in the text, structure or purpose of the legislation to suppose that Parliament intended the word “parent” to have a meaning other than its natural and ordinary meaning. …
…
44... It remains that, apart from those specific provisions, [ss 60H, 60G] the question of whether a person is a parent of a child born of an artificial conception procedure depends on whether the person is a parent of the child according to the ordinary, accepted English meaning of “parent”. And as has been explained, that is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand.
(Footnotes omitted)
[3] (2019) 266 CLR 554.
Masson & Parsons was not a case involving a surrogacy arrangement, but it might be argued it has a more extensive application. In any event, I remain bound by the Full Court’s decision in Bernieres & Dhopal.
If neither applicant is a parent, they may still be eligible to seek a parenting order if they are found to be persons concerned with the care, welfare and development of the child.
In Mankiewicz & Swallow[4] the Full Court held:
10.The effect of s 65C is that the only people who have an unconditional right to apply for parenting orders are those identified in ss 65C(a), (b) and (ba). Applicants who only fall within s 65C(c) have the right to do no more than bring an application to attempt to establish facts which would permit them to apply for a parenting order and have no right to seek substantive relief until they do so. The point being that they can only apply for a parenting order where a court determines they are such a person and thereby grants permission. Whether or not permission should be given is a question of fact and to be determined on the basis that an applicant can demonstrate he or she is concerned with the care, welfare or development of the child. It will be a matter for the judge to decide in the individual case whether this issue is addressed as a discrete issue early in the case or at some other stage.
[4] [2016] FamCAFC 153. See also Aldridge v Keaton (2010) 42 Fam LR 369 at [28].
While on one view it might be thought uncontroversial in the circumstances that the applicants are persons concerned with the care, welfare and development of the child, it seems to me that before that fact can be established there would need to be evidence before the Court including the following:
(a)The current circumstances of the applicants and the child and their plans for the child in the event they are prosecuted and sentenced to a term of imprisonment for the criminal offence of entering into an international surrogacy arrangement contrary to Queensland law;
(b)Evidence that the child is an Australian citizen and has an Australian passport;
(c)A copy of the surrogacy and childbearing agreement between the surrogate, the applicants and C Ltd;
(d)A copy of the DNA report confirming that the surrogate has no genetic connection to the child;
(e)Expert evidence on the law of the Republic of Cyprus (being the only legitimate authority recognised by Australia)[5] on commercial surrogacy in that country and the rights of the surrogate;
(f)Evidence from the surrogate about her current circumstances and what she received by way of remuneration or other benefits from the surrogacy;
(g)Medical evidence corroborating the applicants’ history of inability to have a child;
(h)An assessment from an appropriately qualified Family Report writer as to the suitability of the applicants as carers for the child involving a home visit and interviews with any other persons whom it may be proposed will have a significant relationship with the child.
[5] According to the Australian Government Department of Foreign Affairs and Trade website, Australia supports the sovereignty and territorial integrity of the Republic of Cyprus and recognises the Republic as the only legitimate authority on the island. Australia does not recognise the Turkish Republic of Northern Cyprus.
In the absence of such evidence, I am not satisfied that the applicants are persons concerned with the care, welfare and development of the child pursuant to s 65C(c).
The applicants do not have standing to bring an application for a parenting order.
IF THE APPLICANT/S DO HAVE STANDING, WOULD IT BE PROPER TO MAKE THE PARENTING ORDER SOUGHT AS ONE IN THE BEST INTERESTS OF THE CHILD WHEN BY THEIR OWN ADMISSION THE APPLICANTS HAVE COMMITTED A CRIMINAL OFFENCE UNDER QUEENSLAND LAW?
In the event I am wrong in my finding that the applicants do not have standing to bring an application for a parenting order, I will consider whether it would be proper (in the s 65C sense) to make a parenting order in the circumstances of this case.
Ms B submits that while the applicants “understand that the Court is concerned and seeks to adopt a cautious approach in relation to their case due to the commercial nature of the surrogacy which is in contravention of the Surrogacy Act 2010 (Qld) … the commercial surrogacy while in contravention of the domestic law does not prohibit the Federal Circuit and Family Court (sic) from making orders in relation to whom these proceedings relate”. The only authority cited in support of the applicants’ case is Bernieres & Dhopal.[6]
[6] (2015) FamCA 736; and on appeal [2017] FamCAFC 180.
Bernieres & Dhopal involved an application for a parenting order, a declaration of parentage in relation to a child born pursuant to an overseas commercial surrogacy arrangement, and for leave to commence adoption proceedings pursuant to s 60G. At first instance, Berman J dismissed the application for a declaration of parentage and for leave to commence adoption proceedings as he found the applicants were not parents for the purposes of the Act. Nevertheless, a parenting order granting the applicants parental responsibility and for the child to live with them was made as Berman J was satisfied on the evidence before him that such an order was in the child’s best interests.
The applicants in Bernieres & Dhopal had entered into an overseas commercial surrogacy arrangement while ordinarily resident in Victoria where they intended to live with the child. Unlike the law in Queensland, surrogacy legislation in Victoria did not (and does not) operate extraterritorially, thus the arrangement was not unlawful under Victorian law.
Berman J commenced his reasons by acknowledging the need to be cautious in dealing with such applications and at [16] of his reasons said:
I am mindful of the “best practice principles” as determined by Ryan J in Ellison and Anor & Karnchanit (2012) 48 Fam LR 33. Her Honour had the advantage of submissions of the Australian Human Rights Commission (“AHRC”) and an Independent Children’s Lawyer (“ICL”). The concern of the court was to acknowledge the complexity of surrogacy cases and the potential lack of transparency as to the arrangements that are entered into which require consideration to be given to the birth mother to ensure that she (and her partner if relevant) have not been the subject of exploitation, coercion or duress. Ryan J was of the strong view that the birth mother’s consent must be both free and informed. Her Honour considered that for all surrogacy cases there should be a high level of rigor imposed by the court as a safeguard to ensuring as best as may be possible the veracity of the birth mother, her partner, the child and the applicants.
At [18] of Bernieres & Dhopal, Berman J provided a summary of the matters considered by Ryan J to be “best practice” in surrogacy cases. The summary is as follows:
A summary of those steps are as follows:
(a) The appointment of an ICL.
(b) Affidavit evidence of the birth mother and if relevant her partner setting out their personal circumstances, the circumstances leading to the surrogacy agreement, the surrogacy procedure and the arrangements following the birth of the child.
(c) Independent evidence as to the identification of the child which would include the surrogacy contract or agreement, a certified copy of the child’s birth certificate and if necessary appropriate evidence of translation, parentage testing in accordance with the regulations and evidence of Australian citizenship if same has been granted.
(d) Evidence with respect to the surrogate birth mother to establish that the mother understood the legal issues, had been afforded counselling and was able to provide informed and competent consent.
(e) The preparation of a family report setting out the nature of the child’s relationship with the applicants and evidence to assist the court in determining their parenting capacity and their commitment to the long-term care of the child together with evidence of their preparedness to accommodate and promote a connection with the child’s birth culture.
(f) Finally, and if necessary evidence of the “legal regime” in the overseas jurisdiction.
Several of the matters considered best practice by Ryan J are now required by r 1.10 of the Rules, which is set out at [38] above.
Berman J noted that the “concept and attitude towards surrogacy, in particular when it is not altruistic surrogacy evokes strong emotion” which “enlivens the need to give close consideration to the circumstances in which the commercial surrogacy is undertaken and the application of Part VII of [the Act] to the proceedings”. Berman J had a copy of the surrogacy agreement signed by all parties including the surrogate and her husband and was satisfied that the surrogate had given her full and free consent to the surrogacy arrangement and to never claim any right or entitlement in respect of the child. Berman J nevertheless expressed “significant misgivings” about some of the terms of the surrogacy agreement which his Honour found “disturbing”.
I infer that Berman J was satisfied that the applicants had standing to bring the application as Berman J found on the evidence before him that the child had been living with the applicants for well over 12 months and that the care they were providing to the child was of a “high level”. His Honour also found that the applicants had an “overarching love for [the child] and have the ability, capacity and intention to meet the child’s needs”. His Honour found that he was “easily persuaded that orders as sought by the applicants are in the child’s best interests”.
The applicants’ appeal in Bernieres & Dhopal against the dismissal of their application for a declaration of parentage and for leave to commence adoption proceedings was unsuccessful. As already noted at [50] above, the Full Court were of the view that s 60HB of the Act “covers that field” in terms of who is a parent in surrogacy proceedings.
In the present case, not only is commercial surrogacy prohibited under the Surrogacy Act, but the prohibition also has an extraterritorial operation. The applicants may be liable to criminal prosecution for entering into commercial surrogacy arrangements.
There can be no doubt that at the time of enactment of the Queensland law, the concept of commercial surrogacy was anathema to those promoting the passing of the Surrogacy Bill. During parliamentary debate at the time, the then Attorney General for Queensland made the position of the then government clear when he said:
That is why the government’s bill makes it an extraterritorial offence for a Queenslander to enter into a commercial surrogacy arrangement. Any commercial surrogacy arrangement entered into by a Queensland resident anywhere will be a criminal offence. The point that the honourable member makes is a very important one: children should not be borne from commercial arrangements. The government stands very firmly against that.
Nothing has changed in terms of the applicable law. In my view, to make an order for the applicants to have parental responsibility and for the child to live with them would act to circumvent the clear intention of the legislature. That is a relevant matter in determining whether the proposed parenting order is proper.
Further, in the absence of evidence outlined at [55] I am unable to be satisfied the proposed parenting order would otherwise be in the best interests of the child.
ARE THE APPLICANTS ‘PRESCRIBED ADOPTING PARENTS’ FOR THE PURPOSES OF THE APPLICATION TO LEAVE TO COMMENCE ADOPTION PROCEEDINGS?
An application for leave to commence adoption proceedings can only be brought by a prescribed adopting parent. Neither of the applicants fall within the definition of a prescribed adopting parent.
SHOULD THE APPLICANTS BE REFERRED TO THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS FOR CONSIDERATION OF WHETHER THEY SHOULD BE PROSECUTED FOR AN OFFENCE UNDER THE SURROGACY ACT 2010 (QLD)?
It is not in contention that the applicants have entered into a commercial surrogacy arrangement contrary to the provisions of the Surrogacy Act and as such are liable to prosecution.
It has long been the approach of this Court to refer such matters to the appropriate authorities[7] and I propose to do so.
SHOULD THE APPLICANTS’ SOLICITOR BE REFERRED TO THE OFFICE OF THE NSW LEGAL SERVICES COMMISSIONER FOR CONSIDERATION OF WHETHER SHE HAS MET HER PROFESSIONAL OBLIGATIONS TO PROVIDE COMPETENT LEGAL SERVICES?
[7] Dudley & Chedi [2011] FamCA 502; Findlay v Punyawong [2011] FamCA 503; Seto v Poon [2021] Fam CA 288.
Although I am not privy to what advice was given to the applicants or what instructions were received by the applicant’s legal practitioner, it seems to me to be appropriate to refer the legal practitioner to the Office of the NSW Legal Services Commissioner. The facts seem to warrant an investigation into whether Ms B has complied with her obligations as a legal practitioner by procuring and filing affidavits on behalf of the applicants in these proceedings, in which they admit to an offence under s 56 of the Surrogacy Act and whether she has otherwise breached her obligation to provide competent legal services.
MISCELLANEOUS
While of no assistance to the applicants, I note that on 6 December 2024, the Australian Government requested the Australian Law Reform Commission (“ALRC”) to undertake an inquiry into Australian surrogacy laws. The ALRC has been asked to consider, ‘how surrogacy arrangements made outside of Australia should be addressed by Australian law’ and ‘what is the appropriate recognition of legal parentage in Australia for children born of surrogacy overseas, and how may citizenship, visa and passport requirements for children born of surrogacy overseas be aligned’. The final report is not due until 29 July 2026.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 28 January 2025
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