Lloyd & Compton

Case [2025] FedCFamC1F 28

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…

Continue reading Lloyd & Compton

Sign in free to access the full text

Details
AGLC
Lloyd & Compton [2025] FedCFamC1F 28
Case
[2025] FedCFamC1F 28
Decision Date

CaseChat Overview and Summary

In Lloyd & Compton, the applicants, who are purportedly married and resident in Queensland, sought parenting orders in relation to a child born through a commercial surrogacy arrangement in Cyprus. The Queensland Surrogacy Act 2010 prohibits commercial surrogacy, and the applicants' arrangement was therefore unlawful under Queensland law. The court was tasked with determining whether to grant the applicants' request for parenting orders and whether to refer the matter to the Director of Public Prosecutions and the NSW Legal Services Commissioner for potential prosecution and investigation of legal misconduct, respectively.

The court found that the applicants had entered into an unlawful commercial surrogacy arrangement, which was contrary to Queensland law. The court held that the proposed parenting order was not in the best interests of the child and would circumvent Queensland's prohibition on commercial surrogacy. The court also found that the applicants' legal practitioner should be referred to the NSW Legal Services Commissioner for an investigation into potential professional misconduct. The court dismissed the initiating application and ordered that the relevant documents be referred to the Director of Public Prosecutions and the NSW Legal Services Commissioner.

The court's decision highlights the complexities of surrogacy arrangements that cross jurisdictional boundaries and the importance of complying with applicable laws. The court's referral of the applicants' legal practitioner to the NSW Legal Services Commissioner also underscores the importance of legal practitioners providing competent services and adhering to professional obligations.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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.