Re application under the Parentage Act 2004 (ACT)
[2024] ACTSC 72
•22 March 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Re application under the Parentage Act 2004 (ACT) |
Citation: | [2024] ACTSC 72 |
Hearing Date: | 22 March 2024 |
Decision Date: | 22 March 2024 |
Before: | McCallum CJ |
Decision: | (1) Pursuant to s 26 of the Parentage Act 2004 (ACT), I make a parentage order transferring parentage of the child [REDACTED] born on [REDACTED] from the first interested party and the second interested party to the plaintiffs. |
Catchwords: | PARENTAGE ORDER – APPLICATION – Transfer of parentage under s 26 of the Parentage Act 2004 (ACT) – where child born under surrogacy agreement |
Legislation Cited: | Parentage Act 2004 (ACT) ss 25, 26 |
Parties: | [REDACTED] ( First Plaintiff) [REDACTED] ( Second Plaintiff) [REDACTED] (First Interested Party) [REDACTED] (Second Interested Party) |
Representation: | Counsel K McLeod ( Plaintiffs) Self-represented ( First Interested Party) Self-represented ( Second Interested Party) |
| Solicitors Farrar Gesini Dunn ( Plaintiffs) Self-represented ( First Interested Party) Self-represented ( Second Interested Party) | |
File Number: | SC 48 of 2024 |
McCALLUM CJ:
Introduction
1․By originating application dated 7 February 2024, [REDACTED] and [REDACTED] seek a parentage order in respect of the child [REDACTED]. The application is brought under s 25 of the Parentage Act which provides that an application may be made to this Court for a parentage order about a child.
2․The plaintiffs seek a “parentage order” as defined in the dictionary under s 26 of the Act.
3․That section provides:
26 Parentage order
(1)The Supreme Court must make a parentage order about the child if satisfied that—
(a) the making of the order is in the best interests of the child; and
(b) both birth parents freely, and with a full understanding of what is involved, agree to the making of the order.
(2)However, the Supreme Court may dispense with the requirement under subsection (1) (b) in relation to a birth parent if satisfied that—
(a) the birth parent is dead or incapacitated; or
(b) the applicants cannot contact the birth parent after making reasonable inquiries.
(3)In deciding whether to make a parentage order, the Supreme Court must take the following into consideration, if relevant:
(a)whether the child’s home is, and was at the time of the application, with both substitute parents;
(b) whether both substitute parents are at least 18 years old;
(c) if only 1 of the child’s substitute parents has applied for the order, and the other substitute parent is alive at the time of the application, whether—
(i) the other substitute parent freely, and with a full understanding of what is involved, agrees to the making of the order in favour of the applicant substitute parent; or
(ii) the applicant substitute parent cannot contact the other substitute parent to obtain their agreement under subparagraph (i);
(d)whether payment or reward (other than for expenses reasonably incurred) has been given or received by either of the child’s substitute parents, or either of the child’s birth parents, for or in consideration of—
(i) the making of the order; or
(ii) the agreement mentioned in subsection (1) (b); or
(iii) the handing over of the child to the substitute parents; or
(iv) the making of any arrangements with a view to the making of the order;
(e)whether both birth parents and both substitute parents have received appropriate counselling and assessment from an independent counselling service;
(f)if a birth parent is dead or incapacitated or cannot be contacted—any evidence before the court that the birth parent no longer intended or intends the substitute parents to obtain a parentage order about the child.
(4)The Supreme Court may take into consideration anything else it considers relevant.
(5)For subsection (3) (e), a counselling service is not independent if it is connected with—
(a) the doctor who carried out the procedure that resulted in the birth of the relevant child; or
(b) the institution where the procedure was carried out; or
(c) another entity involved in carrying out the procedure.
(6)The Supreme Court must make a parentage order under subsection (1)—
(a) if both substitute parents apply for the order—in favour of both substitute parents; or
(b) if only 1 substitute parent applies for the order, and the other substitute parent is dead or incapacitated at the time of the application (unless the court is satisfied that, at the time of death or incapacitation, the deceased or incapacitated substitute parent no longer intended or intends to apply for a parentage order about the child)—in favour of both substitute parents; or
(c) if, in any other case, only 1 substitute parent applies for the order—in favour of the applicant substitute parent.
4․The application may be made by either or both of the substitute parents. The present application is brought by both substitute parents of the child.
5․Section 26 sets out the circumstances in which a parentage order must be made. The section requires the court to be satisfied of certain formalities, each of which is addressed in the affidavits relied upon in support of the present application. The principal consideration is whether the making of the order is in the best interests of the child. It plainly is.
6․The Court is frequently called upon to determine matters of a considerably less joyous nature than the matter brought before the Court by the present application.
7․The circumstances of this application are that the female plaintiff, for reasons that need not be recorded, was unable to bear a child. Fortunately, however, she was able by medical processes to create a genetic child with her husband which the female interested party agreed to carry.
8․The circumstances in which that agreement was reached are, as I have indicated, quite joyous. The two women have been friends since High School when they were aged about 13. They have a close and supportive friendship. When the female interested party became aware that the female plaintiff might be unable to carry a child, she offered to carry a child for her as a surrogate.
9․A parentage agreement has been entered into between the two couples and they have taken prudent steps in relation to obtaining appropriate advice and counselling. The nature of their relationship can perhaps be described no more eloquently than in the report of a psychologist, Ian Trevallion, who states:
This is an entirely altruistic proposal being made between close friends. [REDACTED] and [REDACTED] are a close and loving couple who have faced a number of difficulties starting their family and the offer of a surrogacy arrangement from [REDACTED] is an opportunity for them to have a child. There is no doubt that this child will be loved and nurtured.
The proposed surrogate is a long-term friend of [REDACTED] and is socially skilled, intelligent and caring. She has the full support her husband. There are no individual or group contra indications and there are no concerns from a psychological perspective.
10․Those words were written by Mr Trevallion in his report before the surrogacy arrangement was proceeded with. The child has now been born. That occurred in December last year. He and the substitute parents and the birth parents are all in court today.
11․I record these reasons so that there may be, for [REDACTED]'s future, a record of the loving circumstances in which he came into the world, which surely augur well for his life.
Orders
(1)Pursuant to s 26 of the Parentage Act 2004 (ACT), I make a parentage order transferring parentage of the child [REDACTED] born on [REDACTED] from the first interested party and the second interested party to the plaintiffs.
| I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 17 April 2024 |
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