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Re Ashley

Re Ashley

Case [2023] NSWSC 1295 31 October 2023

Surrogacy

Parentage Order

Best Interests of the Child

Family Law

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Supreme Court

New South Wales

Medium Neutral Citation: Re Ashley [2023] NSWSC 1295
Hearing dates: In chambers
Date of orders: 31 October 2023
Decision date: 31 October 2023
Jurisdiction: Equity
Before: Meek J
Decision:
Parentage order made

Catchwords:
FAMILY LAW AND CHILD WELFARE — Surrogacy — Application for parentage order under Surrogacy Act 2010 (NSW) — Failure by parties to sign pre-conception surrogacy arrangement — Consideration of nature of pre-conditions and purposes of legislation — Pre-conception agreement mandatory and signed written agreement non-mandatory —Consideration of whether exceptional circumstances exist justifying the making of an order — No clear explanation for failure to sign the arrangement — Consideration of evidence in light of guiding principle that the best interests of the child of the surrogacy arrangement are paramount — Overall, Court satisfied that exceptional circumstances exist
FAMILY LAW AND CHILD WELFARE — Surrogacy — Purposive approach to construing legislative provisions — Observations regarding aspects of legislative framework designed to ensure participants to surrogacy arrangements (which the law declines to enforce) are conscious of the gravity of the subject matter and adequately advised and counselled so as to minimise the risk that the arrangements falter in light of such unenforceability
STATUTORY CONSTRUCTION — Guiding principles — Purpose of guiding principles
WORDS AND PHRASES — “Conception” — “Pregnant”

Legislation Cited:
Adoption Act 2000 (NSW)
Assisted Reproductive Technology Act 2007 (NSW)
Births, Deaths and Marriages Registration Act 1995 (NSW)
Children (Protection and Parental Responsibility) Act 1997 (NSW)
Children’s Guardian Act 2019 (NSW)
Family Law Act 1975 (Cth)
Interpretation Act 1987 (NSW)
Local Government Act 1993 (NSW)
Status of Children Act 1996 (NSW)
Surrogacy Act 2010 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
A v X; Re Z [2022] NSWSC 971
Application by JSC & RSC [2013] NSWSC 440
BB v DD; Re AA and the Surrogacy Act 2010 (NSW) [2015] NSWSC 1095
BB v DD; Re AA and the Surrogacy Act 2010 (NSW) (No 2) [2015] NSWSC 1825
C v B [2013] NSWSC 254
GP v BP [2018] NSWSC 1887
Kadiev v Petrov [2023] NSWSC 1031
MNM and EA v EM; Re ENA and the Surrogacy Act 2010 (NSW) [2015] NSWSC 1813
Re M; Application for Parentage Order [2023] NSWSC 531
S v B; O v D [2014] NSWSC 1533
Surrogacy Application by a Couple from the United States of America [2017] NSWSC 1806
Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71
Zhang v ROC Services (NSW) Pty Ltd (2016) 93 NSWLR 561; [2016] NSWCA 370

Texts Cited:
Macquarie Dictionary, online ed
Martin, Elizabeth A and Jonathan Law, Concise Medical Dictionary (10th ed, 2020, Oxford University Press)
New South Wales Legislative Council, Parliamentary Debates (Hansard)
Surrogacy Bill 2010 (NSW)

Category: Principal judgment
Parties: Intended mother (First Plaintiff)
Intended father (Second Plaintiff)
Birth mother (First Defendant)
Birth mother’s husband (Second Defendant)
Representation:
Counsel:
Solicitors: [Redacted]

File Number(s): 2023/156439

JUDGMENT

Introduction

HIS HONOUR: Establishing and formalising the parentage of a child is one of the most…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Ashley

Details

AGLC: Re Ashley [2023] NSWSC 1295
Case: [2023] NSWSC 1295
Decision Date: 31 October 2023

CaseChat Overview and Summary

In the matter of Re Ashley, the dispute arose in the context of a surrogacy arrangement under the Surrogacy Act 2010 (NSW). The primary issue before the court was whether a parentage order should be made in favour of the intended parents in circumstances where the parties had failed to sign a pre-conception surrogacy arrangement. The case was heard and determined by the Family Court of Australia.

The central legal issue the court had to decide was whether the failure to sign the pre-conception surrogacy arrangement could be excused under the legislation, particularly in light of the guiding principle that the best interests of the child are paramount. The court had to consider whether there were exceptional circumstances that could justify the making of a parentage order despite the parties' non-compliance with the statutory requirements. The court also needed to examine the purposes of the legislative framework and whether the failure to sign the arrangement could be construed in a manner consistent with those purposes.

The court found that the pre-conception surrogacy arrangement was mandatory, but the signed written agreement was not. Despite the failure to sign the arrangement, the court was satisfied that exceptional circumstances existed, justifying the making of a parentage order. The court considered the evidence presented and concluded that the best interests of the child would be served by making an order in favour of the intended parents. The court adopted a purposive approach to construing the legislative provisions and observed that the legislative framework was designed to ensure participants were conscious of the gravity of the subject matter and adequately advised and counselled. The court found that the failure to sign the arrangement did not preclude the making of an order if it was in the child's best interests.

The court made a parentage order in favour of the intended parents, recognising the exceptional circumstances that existed in the case. The court's decision emphasised the importance of the best interests of the child and the purposive approach to interpreting the legislation.

Orders