Noake & Chatwyn
[2025] FedCFamC1F 332
•16 May 2025
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 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) Rules2021 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Noake & Chatwyn has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ANDERSON J
INTRODUCTION
These proceedings concern a female child born in City C, the capital of Country B in 2024 ("the child"). Her birth was made possible by the terms of a commercial surrogacy agreement entered into by the first and second applicants (collectively “the applicants”) and the first respondent.
By Initiating Application filed on 23 April 2025, the applicants (collectively “the applicants”) sought the following relief from the Court:
(a)Parenting orders within the meaning of s 64B of the Family Law Act 1975 (Cth) (“the Act”); and
(b)Leave to commence adoption proceedings pursuant to s 60G of the Act. This application was abandoned at the hearing on 16 May 2025 for the reasons discussed below.
The first and second respondents (collectively “the respondents”) have no objection to the Court making orders in the terms sought by the applicants. Pursuant to Rule 2.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the respondents and each of them filed a notice submitting to any order, which I may make in these proceedings.
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.
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.
In 2023, the applicants signed an agreement with an egg donor.[10]
[10] First Applicant’s affidavit filed 23 April 2025, Annexure F.
In 2023, the first respondent was implanted with an embryo created using the first applicant's sperm and a donor egg. This embryo transfer was successful, and the first respondent soon fell pregnant, becoming the gestational carrier of the embryo.[11]
[11] First Respondent’s affidavit filed 23 April 2025, paragraph 23.
The child was born in 2024. The applicants spent time with the child at the hospital where she was born. Shortly thereafter, the child was discharged into the care of the applicants. They have cared for the child at their own home in Country B ever since.
In 2024, the child obtained Australian Citizenship.
The applicants plan to move back to Australia when the child is aged four or five years so that she can attend school in Australia. This seems to be the impetus for the application.
At the time of the hearing, the applicants had been visiting family in Australia.[12] They have now returned to Country B together with the child.
[12] First Applicant’s affidavit filed 23 April 2025, paragraph 34.
SURROGACY - RULE 1.10 OF THE FAMILY LAW RULES
The evidentiary requirement for applications in relation to a child who was born under a surrogacy agreement (if no final parenting order in relation to the child has been made under Part VII of the Act) is set out in r 1.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”). I find that the requirements set out in r 1.10 of the Rules were satisfied by:
(a)the facts set out above in relation to the surrogacy arrangements between the applicants and the first respondent;
(b)the evidence before me as contained in the applicants’ affidavits and the first respondent’s affidavit; and
(c)the further evidence set out below.
By her affidavit filed on 24 September 2024, the first respondent says that:
(a)She signed a Surrogacy Agreement with the applicants in 2023;[13]
(b)She had been a surrogate before and is “very familiar with the process”;[14]
(c)She received counselling and legal advice prior to entering into the Surrogacy Agreement;[15]
(d)She has a family of her own and does “not wish to have any relationship with [the child]”.[16] The first respondent’s position was consistent with the position of her de facto partner. He said as follows:
[The mother] and I have our own family and do not wish to have any relationship with [the child]. I am assured that [the applicants] will be doting parents and will do a great job raising [the child].[17]
(e)Subsequent to the birth of the child, the first respondent returned to live with her de facto partner, the children of that relationship and her de facto partner’s children.[18]
[13] First Respondent’s affidavit filed 24 September 2024, paragraph 8(b).
[14] First Respondent’s affidavit filed 24 September 2024, paragraph 15.
[15] First Respondent’s affidavit filed 24 September 2024, paragraphs 14 and 15.
[16] First Respondent’s affidavit filed 24 September 2024, paragraph 17.
[17] Second Respondent’s affidavit filed 24 September 2024, paragraph 17.
[18] First Respondent’s affidavit filed 24 September 2024, paragraph 10.
The respondents’ evidence about their desire not to have a relationship with the child was fortified by Submitting Notices filed by each of them pursuant to Rule 2.22 of the Rules. By that document, the respondents each advised the Court that they submit to any order the Court may make in these proceedings.
APPLICABLE LAW
The first determination I must make is whether I have jurisdiction to determine these proceedings noting that neither the parties nor the child are domiciled in Australia.
The bounds of the jurisdiction of the Court in parenting proceedings are set out in s 69E of the Family Law Act 1975 (Cth) (“the Act”) in the following terms:
69E Child or parent to be present in Australia etc.
(1) Proceedings may be instituted under this Act in relation to a child only if:
(a)the child is present in Australia on the relevant day (as defined in subsection (2)); or
(b)the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c)a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(d)a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(e)it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
(2) In this section:
relevant day, in relation to proceedings, means:
(a)if the application instituting the proceedings is filed in a court—the day on which the application is filed; or
(b)in any other case—the day on which the application instituting the proceedings is made
Note:Division 4 of Part XIIIAA (International protection of children) has effect despite this section.
(Emphasis in original)
In the present case, the child is an Australian citizen and was present in Australia on the day when proceedings were instituted.[19] Prima facie, the court has jurisdiction to hear these parenting proceedings.
[19] First Applicant’s affidavit filed 23 April 2025, paragraph 41.
As discussed above, the applicants also seek leave to commence proceedings for the adoption of the child by the second applicant. Adoption proceedings are not determined by the Court and are instead determined by State courts pursuant to the relevant State legislation. The relevant State legislation in New South Wales is the Adoption Act 2000 (NSW). Notwithstanding this, there is provision in the Act for the Court to provide leave to commence adoption proceedings.
Section 60G of the Act relevantly provides:
1.Subject to subsection (2), the Federal Circuit and Family Court of Australia (Division 2), the Supreme Court of the Northern Territory or the Family Court of a State 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 s 60F(4)(a) of the Act, or s 60HA(3)(a) of the Act, and of ss 61E and 65J of the Act.
The section expressly provides that the Federal Circuit and Family Court of Australia (Division 2) may grant leave for proceedings to be commenced for the adoption of a child. Notwithstanding this, and pursuant to s 25 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”), this Court has jurisdiction to hear matters which have been transferred from Division 2 to Division 1 under s 149 of the FCFCOA Act. Whilst this proceeding commenced in the Federal Circuit and Family Court of Australia (Division 2), transfer Orders were made on 27 September 2024 and again on 16 May 2025 pursuant to s 149 of the FCFCOA Act. The effect of such Orders was to transfer the proceeding to this Court to be heard and determined.
A “prescribed adopting parent” for the purposes of s 60G is defined in s 4 of the Act and means:
(a)a parent of the child; or
(b)the spouse of, or a person in a de facto relationship with, a parent of the child; or
(c)a parent of the child and either his or her spouse or a person in a de facto relationship with the parent.
The first applicant is a parent of the child, and the second applicant is the de facto partner of the first applicant. Section 60HA(3)(a) of the Act, which relates to a child of current or former de facto partners who are adopted by a prescribed adopting parent is not relevant to the application before me.
The Surrogacy Act 2010 (NSW) provides:
11. Geographical nexus for offences
(1)This section applies for the purposes of, and without limiting, Part 1A of the Crimes Act 1900.
(2)The necessary geographical nexus exists between the State and an offence against this Division if the offence is committed by a person ordinarily resident or domiciled in the State.
Note –
Section 10C of the Crimes Act 1900 also provides that a geographical nexus exists between the State and an offence if the offence is committed wholly or partly in the State or has an effect in the State.
STANDING OF THE APPLICANTS TO MAKE AN APPLICATION FOR A PARENTING ORDER?
The applicants seek parenting orders in the following terms:
(a)That the first and second applicants have joint decision-making responsibility for all major long-term issues in relation to the child;
(b)That the respondents have no parental responsibility for the child;
(c)That the child live with the applicants.
The applicants also seek orders under section 11 of the Australian Passports Act 2005 (Cth).
The applicants’ solicitor did not address the fundamental jurisdictional question, whether the applicants can make an application for a parenting order under Part VII of the Act.
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 Family Law Regulations 2024 and relevantly, a prescribed law is one pursuant to s 12 of the Surrogacy Act 2010 (NSW). Section 12 provides that a court (defined by s 4 to be the Supreme Court of New South Wales) may make a parentage order only if various preconditions to the making of a parentage order, as set out in sections 21 to 38, are satisfied. An application for a parentage order cannot be made if the surrogacy arrangement is a commercial surrogacy arrangement, as it is in this case.[20] Accordingly, neither applicant is a parent within the meaning of s 60HB of the Act.
[20] Section 23, Surrogacy Act 2010 (NSW).
As Chief Judge Thackray explained in Farnell & Anor and Chanbua[21]:
Sections 60H and 60HB, at least to the extent that they expressly determine the status of children coming within their ambit, would be rendered meaningless if they were not interpreted to displace the presumptions in Division 12 [of the Act]. It should also be noted that ss 60H and 60HB appear in Subdivision D of Division 1 of Part VII, which is entitled “Interpretation – how this Act applies to certain children”. I conclude that while the rules of maternity and paternity in ss 60H and 60HB are not expressed as non-rebuttable presumptions, in effect they are, and they therefore trump the rebuttable Division 12 presumptions.
(Footnotes omitted)
[21] (2016) FLC 93–700 at [143]; [2016] FCWA 17 at [231].
In Bernieres & Dhopal[22] (“Bernieres”), the Full Court of the Family Court of Australia (as the Court was then known) held that s 60HB “covers that field”. At [62] and [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”.
[22] (2017) 57 Fam LR 149.
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[23] 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.
[23] [2016] FamCAFC 153; Refer also to Aldridge v Keaton (2010) 42 Fam LR 369 at [28].
In KAM & MJR & JIG[24], Justice Burr considered that the concept of “concern” ought to be afforded a wide interpretation. In this case, and because the applicants have had a direct role in caring for the child for some time, I am satisfied that they easily satisfy this test.
[24] (1999) FLC 92-847; (1999) 24 Fam LR 656; [1998] FamCA 1896
Further, and for the reasons, which I refer to above, I am in no doubt that the applicants are persons concerned with the care, welfare and development of the child. Particularly, I bring to account the following:
(a)The first applicant is the child’s biological father and is registered as the father on the child’s Birth Certificate;[25]
(a)The child was discharged from the hospital into the care of the applicants following her birth.[26] Each of the applicants has cared for the child since that time;
(b)The child is dependent on each of the applicants for her day-to-day care and welfare;
(c)The applicants have provided for the child’s physical, financial, psychological and emotional needs since her birth;
(d)The applicants own two properties in Country B and an apartment in City F.[27] The first applicant and the second applicant work full time in businesses owned and operated by each of them.[28] I am satisfied that the applicants have the capacity to provide for the financial needs of the child; and
(e)The respondents have each filed an affidavit expressing that they wish to “relinquish custody” of the child;
(f)The applicants have taken a sensible and logical approach to the future. Particularly, they have advised the Court that they “intend to be open with the child about her birth story, which they will do in an age-appropriate manner as she gets older”.[29] Additionally, the second applicant says as follows:
We have intentionally maintained contact with both…[the] egg donor and surrogate. Our hope is that our relationship with both women continues into the future so that [the child] is able to communicate with them directly in the future if she wishes to do so.[30]
[25] First Applicant’s affidavit filed 23 April 2025, Annexure B.
[26] First Applicant’s affidavit filed 15 August 2024, paragraph 25.
[27] First Applicant’s affidavit filed 23 April 2025, paragraphs 14, 15 and 28.
[28] First Applicant’s affidavit filed 23 April 2025, paragraph 28; Second Respondent’s affidavit filed 23 April 2025, paragraph 28.
[29] Second Applicant’s affidavit filed 23 April 2025, paragraph 41.
[30] Second Applicant’s affidavit filed 23 April 2025, paragraph 41.
I am satisfied that the applicants are persons concerned with the care, welfare and development of the child pursuant to s 65C(c) of the Act. This being so, the applicants have standing to bring an application for a parenting order.
IS IT PROPER TO MAKE THE PARENT ORDERS SOUGHT AS ONE IN THE BEST INTERESTS OF THE CHILD?
There are two aspects of the application, which caused me consternation. Firstly, I was advised that the only framework for surrogacy in Country B is altruistic surrogacy for heterosexual parents.[31] There was no admissible evidence on the domestic law of Country B where the child was born pursuant to a commercial surrogacy agreement. The applicants may by reason of the arrangements, which they reached with the surrogacy agency and the first respondent opened themselves to potential prosecution by Country B authorities. In my view, that is a matter for them.
[31] Applicant’s affidavit filed 23 April 2025, paragraphs 36 and 37.
Secondly, I was concerned that commercial surrogacy is prohibited by operation of section 8 of the Surrogacy Act 2010 (NSW). This being so, and for the reasons eloquently identified by Justice Carew in Lloyd & Compton[32](“Lloyd”), I was anxious not to circumvent the clear intention of the legislature. However, and unlike the legislation, which fell for consideration by Carew J in Lloyd, the New South Wales legislation in the form of s 11 of the Surrogacy Act 2010 and s 10C of the Crimes Act 1900 (NSW) make it clear that the prohibition against commercial surrogacy does not have extraterritorial application. This being so, the arrangement entered into between the applicants and the first respondent was not unlawful under New South Wales law.
[32] [2025] FedCFamC1F 28.
For these reasons, I am prepared to make parenting orders in the terms proposed by the applicants.
When indicating a preparedness to make parenting orders in the terms proposed by the applicants, I note that the respondents have been served with the Initiating Application and supporting material and have advised the Court by their affidavits filed on 24 September 2024 that each of them have had the effect of the proposed orders explained to them by a lawyer with the assistance of a Country B interpreter.[33] Each of the respondents advise by his/her affidavit that they agree to the parenting orders sought by the applicants.
[33] First Respondent’s affidavit filed 24 September 2024, paragraph 7; Second Respondent’s affidavit filed 24 September 2024, paragraph 7.
LEAVE FOR PROCEEDINGS TO BE COMMENCED FOR THE ADOPTION OF THE CHILD
The application now abandoned by the applicants was made pursuant to s 60G of the Act.
Regrettably, and by reference to the decision of the Full Court in Bernieres (supra), I advised the applicants’ solicitor at the hearing before me on 12 May 2025 that I did not consider that I could make an order granting the applicants leave to commence adoption proceedings. As already noted above, this is because the Full Court were of the view that s 60HB of the Act “covers the field” in terms of who is a parent in surrogacy proceedings. Accordingly, neither of the applicants fall within the definition of a prescribed adopting parent.[34]
[34] Section 60G(1) of the Act.
At the hearing on 16 May 2025, the applicants’ solicitor expressed agreement with my preliminary view and withdrew the application for leave to commence adoption proceedings.
As occurred in Lloyd, no submissions were made about the effect, if any, of the subsequent decision of Masson & Parsons[35] (“Masson”) where the High Court of Australia held at paragraphs 26 and 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)
[35] (2019) 266 CLR 554.
Masson was not a case involving a surrogacy arrangement. However, I agree with Carew J’s comment in Lloyd that it might be argued it has a more extensive application.
In any event, and given I remain bound by the Full Court’s decision in Bernieres, the applicants withdrew their application seeking leave to commence proceedings for the adoption of the child.
SPECIFIC ISSUE ORDERS
The applicants seek an order with respect to the issue of an Australian passport to the child.
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.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. Associate:
Dated: 16 May 2025
0
4
7