Noake & Chatwyn

Case [2025] FedCFamC1F 332

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Noake & Chatwyn [2025] FedCFamC1F 332

File number(s): PAC 1973 of 2025
Judgment of: ANDERSON J
Date of judgment: 16 May 2025
Catchwords:

FAMILY LAW – PARENTING – Parenting Orders – Surrogacy – Where an overseas surrogacy arrangement has been entered- Where commercial surrogacy is prohibited in New South Wales – Where section 8 of the Surrogacy Act 2010 (NSW) does not apply as there is no geographical nexus – Where one of the applicants is the biological father of the child – Whether a parenting order is “proper” – Where the proposed order is in the best interests of the child

FAMILY LAW – PARENTAGE – Where the child of the relationship was born as a result of a surrogacy arrangement – Where the Court is unable to grant leave to commence adoption proceedings under s 60G of the Family Law Act 1975 (Cth) – Meaning of “prescribed adopting parent”
Legislation:

Australian Passports Act 2005 (Cth) s 11(1)(a).

Family Law Act 1975 (Cth) ss 60G(1), 60HA(3)(a), 60HB, 60I, 64B, 65C(c), 65DA(2), 69E, 111CD.

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 25, 149.

Family Law Regulations 2024 (Cth) Reg 49.

Federal Circuit and Family Court of Australia (Family Law) Rules (Cth) 2021 Rule 1.10, 2.22, 8.15(3)(e).

Crimes Act 1900 (NSW) s 10C.

Surrogacy Act 2010 (NSW) ss 11, 12, 21-28.

Cases cited:

Aldridge v Keaton (2010) 42 Fam LR 369

Bernieres & Dhopal (2017) 57 Fam LR 149

Farnell & Anor and Chanbua (2016) FLC 93–700

KAM & MJR & JIG (1999) FLC 92-847; (1999) 24 Fam LR 656

Lloyd & Compton [2025] FedCFamC1F 28

Mankiewicz & Swallow [2016] FamCAFC 153

 Masson & Parsons (2019) 266 CLR 554

Division: Division 1 First Instance
Number of paragraphs: 57
Date of last submission/s: 16 May 2025
Date of hearing: 1, 12 and 16 May 2025
Place: Parramatta
Solicitor for the Applicants: Sarah Bevan Family Lawyers
Solicitor for the Respondents: Did not participate

ORDERS

PAC 1973 of 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR NOAKE

First Applicant

MR CHATWYN

Second Applicant
AND:

MS FRIIS

First Respondent

MR OWSTON

Second Respondent

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

16 MAY 2025

THE COURT ORDERS THAT:

1.The requirement of the First and Second Applicants (“the Applicants”) to file a certificate pursuant to section 60I of the Family Law Act 1975 (Cth) is dispensed with.

2.The Applicants have equal shared parental responsibility for the child, X born 2024, and joint decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (“the Act”) affecting the child.

3.The child live with the Applicants.

4.The First and Second Respondents (“the Respondents”) have no parental responsibility for the child.

5.That pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) this order expressly permits the issue of a passport or travel documents (within the meaning of the…

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Noake & Chatwyn [2025] FedCFamC1F 332
Case
[2025] FedCFamC1F 332
Decision Date

CaseChat Overview and Summary

The case of Noake & Chatwyn involved a dispute over parenting orders following a surrogacy arrangement. The applicants, Mr Noake and Mr Chatwyn, sought parenting orders in relation to a child born through a commercial surrogacy agreement in Country B. Mr Noake is the biological father of the child, and Mr Chatwyn is his partner. The respondents, Ms Friis and Mr Owston, are the surrogate mother and her de facto partner, respectively. The applicants had entered into a surrogacy agreement with the surrogate mother, who gave birth to the child in late 2023. The applicants' primary concern was to secure legal recognition of their parental responsibilities, particularly in light of the prohibition on commercial surrogacy in New South Wales. The court had to decide whether to grant parenting orders to the applicants, considering the best interests of the child and the legal implications of the surrogacy arrangement.

The court had to address several legal issues, including whether a parenting order was "proper" under the Family Law Act 1975 (Cth) and whether the applicants could be considered the child’s parents for the purposes of granting such orders. Additionally, the court examined whether the applicants qualified as "prescribed adopting parents" under s 60G of the Family Law Act 1975 (Cth). The court also needed to consider whether the surrogate mother’s relinquishment of custody aligned with the legal framework governing surrogacy and adoption in Australia.

The court found that the applicants were entitled to parenting orders as they were in the best interests of the child. The court determined that despite the prohibition on commercial surrogacy in New South Wales, the applicants had established a strong parental bond with the child and were best positioned to provide for her care and welfare. The court further held that the applicants qualified as "prescribed adopting parents," allowing them to apply for an adoption order under s 60G of the Family Law Act 1975 (Cth). Consequently, the court granted the applicants equal shared parental responsibility and joint decision-making authority over the child, while denying any parental responsibility to the surrogate mother and her de facto partner.

The court's orders included provisions for the applicants to have sole parental responsibility for the child, permitting them to make decisions concerning the child's major long-term issues. The court also noted that the applicants did not need to file a certificate under s 60I of the Family Law Act 1975 (Cth) and that the applicants could apply for an Australian passport for the child without the surrogate mother and her partner's consent. The court's decision aimed to protect the child’s best interests while recognising the applicants’ parental rights and responsibilities.

Orders

Orders of the court

PAC 1973 of 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR NOAKE

First Applicant

MR CHATWYN

Second Applicant

AND:

MS FRIIS

First Respondent

MR OWSTON

Second Respondent

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

16 MAY 2025

THE COURT ORDERS THAT:

1. The requirement of the First and Second Applicants (“the Applicants”) to file a certificate pursuant to section 60I of the Family Law Act 1975 (Cth) is dispensed with.

2. The Applicants have equal shared parental responsibility for the child, X born 2024, and joint decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (“the Act”) affecting the child.

3. The child live with the Applicants.

4. The First and Second Respondents (“the Respondents”) have no parental responsibility for the child.

5. That pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) this order expressly permits the issue of a passport or travel documents (within the meaning of the Australian Passports Act) for the child, X born 2024, upon application by the applicants and without requiring the consent of the respondents.

6. The Applicants serve a sealed copy of these Orders upon the New South Wales Registry of Births, Deaths and Marriages as soon as practicable.

7. The applicants serve a sealed copy of these Orders on the Respondents as soon as practicable.

8. Pursuant to s.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.

9. All extant applications be dismissed.

AND THE COURT NOTES THAT:

A. For the purpose of section 11 of the Australian Passports Act 2005 (Cth), the above orders permit:

a. The child to travel outside of the Commonwealth of Australia with the Applicants or either of them;

b. The Respondents do not have parental responsibility for the child and accordingly, their consent is not required for the issue of an Australian passport for the child;

c. The child is permitted to have an Australian Passport or travel document (within the meaning of the Australian Passports Act) provided the application for that document is made by the First and Second Applicants who may sign any declaration on the application in the form approved by the relevant Minister.

B. The Respondents and each of them filed a Submitting Notice pursuant to Rule 2.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and by those documents, submitted to any order the Court may make in these proceedings.

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 purposes of the hearing, I dispensed with the terms of r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and I have regard to the annexures to the affidavits referred to above. Those annexures are summarised as follows:(a)A certified copy of the child’s Country B birth certificate together with a certified English translation of that document;(b)A certified copy of the notice given by the Minister for Home Affairs and Immigration with respect to the acquisition of Australian Citizenship by the child in 2024;(c)A copy of a Surrogacy Agreement dated 2023 entered between the applicants and a business, which provides egg donor and surrogate services in Region D (“the surrogacy agency”);(d)A copy of a Surrogacy Agreement entered between the applicants and the first respondent;(e)A copy of a report from a DNA testing agency dated April 2025; and(f)A copy of the egg donor agreement signed by the applicants and a third party donor.BACKGROUND The first and second applicants are aged 39 and 42 years of age respectively.[1] The first applicant is the biological father of the child.[2] He is registered as the child’s father on her Birth Certificate.[3][1] First Applicant’s affidavit filed 23 April 2025, paragraphs 1, 2 and 3.[2] First Applicant’s affidavit filed 23 April 2025, paragraph 6.[3] First Applicant’s affidavit filed 23 April 2025, Annexure B. The first applicant is a dual citizen of Country B and the United Kingdom. The second applicant is an Australian citizen.[4][4] Ibid. The applicants have been in relationship since early 2012 and commenced cohabitation in late 2012. They have resided in Country B for the duration of their relationship.[5] [5] First Applicant’s affidavit filed 23 April 2025, paragraphs 4 and 12. The first and second respondents are aged 41 and 40 years respectively. The first respondent is the surrogate who gave birth to the child. She is registered as the child’s mother on her Birth Certificate.[6] The second respondent is the de facto partner of the first respondent. The respondents have been in a de facto relationship for more than nine years and reside in Region E, Country B.[7] [6] First Applicant’s affidavit filed 23 April 2025, Annexure B.[7] Affidavit of the First Respondent filed on 24 September 2024, paragraphs 2 to 4. In 2023, the applicants signed a Surrogacy Agreement with a business, which provides egg donor and surrogate services in Region D (“the surrogacy agency”).[8] The agreement provided for the applicants to pay compensation to the surrogacy agency for and on behalf the first respondent and her antenatal care.[8] First Applicant’s affidavit filed 23 April 2025, paragraph 9. In late 2023, the applicants signed a Surrogacy Agreement with the first respondent.[9] Pursuant to the terms of that agreement, the first respondent agreed to carry an embryo to term and to “relinquish custody” of any children born pursuant to the agreement. The applicants’ solicitor conceded during oral submissions that the agreement could only be characterised as a commercial surrogacy agreement.[9] First Applicant’s affidavit filed 23 April 2025, paragraph 10 and Annexure E.

Evidence

Evidence Before The Court

For the reasons, which follow, I will make parenting orders in the terms sought by the applicants.EVIDENCE The applicants initially commenced proceedings on 15 August 2024 seeking orders in the same terms as the application heard by me. However, and at the time the proceedings were instituted, neither the applicants nor the child were present in Australia. This being so, and on 14 March 2025, the Honourable Justice Riethmuller made an order that the applicants be granted leave to withdraw their application in circumstances where the criteria set out in s 69E of the Act were not satisfied. Further, the Court did not have sufficient evidence to determine whether the provisions of s 111CD of the Act provided the applicants with jurisdictional relief. Against this background, the applicants filed fresh proceedings on 23 April 2025 in circumstances where the applicants travelled to the Commonwealth of Australia together with the child so that the jurisdictional requirements of s 69E of the Act might be satisfied. At the hearing on 1 May 2025, I granted the applicants leave to rely upon documents filed in the former proceedings as well as these proceedings. Accordingly, and for the purposes of my determination, the applicants relied on the following documents:(a)Initiating Application filed on 23 April 2025;(b)Affidavit - Non-Filing Family Dispute Resolution Certificate filed on 23 April 2025;(c)Affidavits in the name of the first applicant filed on 15 August 2024 and 23 April 2025;(d)Affidavits in the name of the second applicant filed on 15 August 2024 and 23 April 2025;(e)Affidavits in the name of the surrogate mother filed on 24 September 2024 and 23 April 2025;(f)Affidavits in the name of the surrogate mother’s de facto partner filed on 24 September 2024 and 23 April 2025;(g)A Submitting Notice filed by the surrogate mother filed on 29 April 2025;(h)A Submitting Notice filed by the surrogate mother’s de facto partner on 29 April 2025. For the purposes of the hearing, I dispensed with the terms of r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and I have regard to the annexures to the affidavits referred to above. Those annexures are summarised as follows:(a)A certified copy of the child’s Country B birth certificate together with a certified English translation of that document;(b)A certified copy of the notice given by the Minister for Home Affairs and Immigration with respect to the acquisition of Australian Citizenship by the child in 2024;(c)A copy of a Surrogacy Agreement dated 2023 entered between the applicants and a business, which provides egg donor and surrogate services in Region D (“the surrogacy agency”);(d)A copy of a Surrogacy Agreement entered between the applicants and the first respondent;(e)A copy of a report from a DNA testing agency dated April 2025; and(f)A copy of the egg donor agreement signed by the applicants and a third party donor.BACKGROUND The first and second applicants are aged 39 and 42 years of age respectively.[1] The first applicant is the biological father of the child.[2] He is registered as the child’s father on her Birth Certificate.[3][1] First Applicant’s affidavit filed 23 April 2025, paragraphs 1, 2 and 3.[2] First Applicant’s affidavit filed 23 April 2025, paragraph 6.[3] First Applicant’s affidavit filed 23 April 2025, Annexure B.

Decision

Reasons for decision

In circumstances where I have made an order allocating parental responsibility to the applicants, it is not necessary by operation of section 11(1)(a) of the Australian Passports Act 2005 (Cth) to make the order sought by them. However, out of an abundance of caution, the applicants’ solicitor invited me to make such an order, and I will agree to do so in an effort to ensure that any application process is not challenging for the applicants.CONCLUSION Having regard to the circumstances of the parties and the totality of the evidence, it is appropriate for orders to be made granting the applicants an exemption from obtaining a certification pursuant to s 60I of the Act. The orders set out at the commencement of these reasons are those that most capably meet the child’s best interests.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.