Re: Grosvenor
[2017] FamCA 366
•26 May 2017
FAMILY COURT OF AUSTRALIA
| RE: GROSVENOR | [2017] FamCA 366 |
| FAMILY LAW – CHILDREN – REGISTRATION OF OVERSEAS CHILD ORDER – Whether the Court should exercise its discretion to have an overseas order registered in Australia – Where the applicants seek to register certain orders made by a Court in the United States of America – Where the child’s birth was facilitated by surrogacy agreement between the applicants and a “gestational carrier” – Where the applicant father is the biological parent of the child – Whether the order is an “overseas child order” for the purposes of the Act – Whether the applicants are “proceeding to” Australia – Where the Court is satisfied the overseas order should be registered with this Court. FAMILY LAW – PRACTICE AND PROCEDURE – Where the Court seeks to protect the identity of the applicants, child and gestational carrier – Where any person seeking to search the Court’s file in this matter must first obtain leave from a Judge of this Court. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Carlton & Bissett and Anor [2013] FamCA 143 |
| FIRST APPLICANT: | Mr Grosvenor |
| SECOND APPLICANT: | Ms Grosvenor |
FILE NUMBER: By Court Order File Number is suppressed
| DATE DELIVERED: | 26 May 2017 |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | By way of Written Submissions |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr S Page Harrington Lawyers |
Orders
That the Orders of the … Court …, …, North Carolina, United States of America on 20 April 2016, be registered with this Court.
That the full names of the applicants and their occupations, the full name of the child, X, this Court’s file number, and any other fact or matter that may identify X or her parents shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover sheets excluding the registry, file number, as well as the parties’ real names) shall be released by the Court to non-parties without further contrary order of a Judge of this Court, it being noted that the applicants will be provided, through their solicitors, with one copy of the orders, one copy of the Reasons for Judgment and one cover sheet of the Reasons for Judgment that includes the file number.
That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a Judge of this Court.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: Grosvenor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA |
FILE NUMBER: By Court Order File Number is suppressed
| Mr Grosvenor |
First Applicant
And
| Ms Grosvenor |
Second Applicant
REASONS FOR JUDGMENT
By Application in a Case filed on 24 April 2017, the applicants, Mr Grosvenor and Ms Grosvenor, ask the Court to register Orders made by a Court in North Carolina, in the United States of America. They have also asked for the matter to be determined on the papers in chambers. The matter was referred to me by a Registrar of this Court for determination. As there are no parties other than the applicants and they have no wish to be heard in open court, preferring to rely on their solicitor’s written submissions already provided, I am prepared to determine the matter in chambers but will publish my judgment in open court.
The applicants each filed an affidavit on 24 April 2017, and rely upon them in support of their application. They are married. They are both Australian citizens. Mr Grosvenor is an Officer in the Australian Defence Force, currently on secondment to a posting in the United States, where he is employed in a senior role. Ms Grosvenor is not currently employed in the United States. Prior to their departure to the United States in July 2014, the applicants were residing in Canberra, and Ms Grosvenor was employed with the Australian public service.
Ms Grosvenor suffers from a medical condition which prevents her from carrying a baby through pregnancy to full-term. As such, the applicants’ daughter was conceived through assisted reproductive technology by in vitro fertilisation. Ms Grosvenor has a DNA defect which would pass down to her child if her oocyte was used. That would likely seriously impact the child’s physical and cognitive development and quality of life. To conceive their child, X, an anonymous oocyte donor was used together with a sperm from Mr Grosvenor. Then, the assistance of another woman was sought, into whose uterus an embryo that was brought into existence was transferred.
The child’s birth was facilitated in North Carolina through what the applicants concede was a commercial surrogacy agreement between the applicants and the woman who carried the baby through gestation to birth. A copy of this commercial surrogacy ‘Gestational Carrier Agreement’ was adduced into evidence. It provides for payments by the applicants to the gestational carrier (the woman who gave birth to the child) at various stages during the pregnancy and for various things, but it describes them as reimbursement for pregnancy related expenses. It expressly states that the agreement is not an agreement for payment for the child or payment for the relinquishment of parental rights to the child. Nevertheless, as I have just observed, the applicants themselves, and their solicitors, describe the surrogacy agreement as a commercial one.
Each applicant annexes to their affidavit a certified copy of Orders made by the Court in North Carolina, on 20 April 2016, two weeks before the child was born. It has been referred to in the applicants’ solicitor’s submissions as a “pre-birth” order.
The applicants petitioned the Court for the Order. The gestational carrier and her husband were the named respondents to those proceedings. The Court’s Order made Mr Grosvenor the legal parent of the child from the time she was born, as well as already being her biological parent, and made Ms Grosvenor the legal parent of the child from the time she was born. The Orders were as follows:
THEREFORE, it is ORDERED that:
1)Petitioner [Mr Grosvenor] is hereby declared to be the genetic and legal father of the child who is due to be born on … 2016, and who is referenced herein as Baby [Grosvenor];
2)Petitioner [Ms Grosvenor] is hereby declared to be the legal mother of the child who is due to be born on … 2016, and who is referenced herein as Baby [Grosvenor];
3)Respondent [Ms W] is a gestational carrier, undergoing this pregnancy for the Intended Parents, and neither she nor her husband, Respondent [Mr W], is the genetic or legal parent of the child referenced herein;
4)Neither Respondent [Ms W] nor her spouse, Respondent [Mr W], has any parental rights, duties or obligations with respect to the child referenced herein;
5)Petitioners [Mr Grosvenor] and [Ms Grosvenor] shall have sole physical and legal custody of the child referenced herein from the moment of birth, including, but not limited to, the exclusive right to consent to medical treatment as provided by law and full access to the child’s medical records during hospitalization, following birth, and at all times thereafter;
6)Petitioners [Mr Grosvenor] and [Ms Grosvenor] have all legal responsibilities, duties, obligations and rights as the legal parents of the child, including the duties of care and financial support;
7)Petitioners [Mr Grosvenor] and [Ms Grosvenor], while not acting in the capacity of an insurer, shall be responsible for Respondent [Ms W’s] uncovered medical expenses directly related to the pregnancy;
8)Petitioners [Mr Grosvenor] and [Ms Grosvenor], as the parents of the child, shall have full and exclusive parental access to the child immediately upon birth and throughout the child’s hospitalisation. They shall be the only parties authorised to allow other persons to see or visit with the child, and, absent other direction from them or from the Court, they shall be the only parties to whom the child is discharged from the hospital;
9)The child shall be entitled to receive the benefits any child born to Petitioners would receive, including but not limited to inheritance, government benefits as applicable, and insurance;
10)Petitioners [Ms Grosvenor] as mother and [Mr Grosvenor] as father have the right to name the child;
11)The hospital shall issue the child’s Certificate of Live Birth naming [Ms Grosvenor] as the mother and [Mr Grosvenor] as the father without naming [Ms W] (or any other female) as the mother or [Mr W] (or any other male) as the father. The hospital shall provide appropriate information to Vital Records for registration of the child’s Certificate of Live Birth;
12)The appropriate agency authorised to register Certificates of Live Birth shall register the Certificate of Live Birth naming [Ms Grosvenor] as the mother and [Mr Grosvenor] as the father without naming [Ms W] as the mother or [Mr W] as the father, and showing the name of the child as designated by [Mr Grosvenor] and [Ms Grosvenor].
Statutory Provisions
Relevantly, ss 70G, 70H and 70J of the Family Law Act provide:
70G Registration of orders
The regulations may make provision for and in relation to the registration in courts in Australia of overseas child orders, other than excluded orders.
70H Effect of registration—general
An overseas child order registered in a court under section 70G has the same force and effect as if it were an order made by that court under this Part.
Note: Division 4 of Part XIIIAA (International protection of children) may affect the operation of a registered overseas child order.
70J Effect of registration on exercise of jurisdiction
(1)A court in Australia that is aware that an overseas child order is registered under section 70G must not exercise jurisdiction in proceedings for the making of a Subdivision C parenting order in relation to the child concerned unless:
(a) each person:
(i) with whom the child is supposed to live; or
(ii) who is to spend time with the child; or
(iii) who is to have contact with the child; or
(iv) who has rights of custody or access in relation to the child;
under the overseas order consents to the exercise of jurisdiction by the court in the proceedings; or
(b)the court is satisfied that there are substantial grounds for believing that the child’s welfare requires that the court exercise jurisdiction in the proceedings.
(2)If a court exercises jurisdiction in proceedings for a Subdivision C parenting order in relation to a child who is the subject of an overseas child order, the court must not make a Subdivision C parenting order in relation to the child unless it is satisfied:
(a)that the welfare of the child is likely to be adversely affected if the order is not made; or
(b)that there has been such a change in the circumstances of the child since the making of the overseas child order that the Subdivision C parenting order ought to be made.
Section 4 of the Family Law Act defines the relevant terms, “excluded order”, “overseas child order” and “overseas jurisdiction” as follows:
excluded order means:
(a)an interim order; or
(b) an order made in favour of a person where:
(i) the order was made on the application of the person; and
(ii)notice of making the application was not served on any other person; and
(iii) no other person appeared at the hearing of the application.
overseas child order means:
(a)an order made by a court of a prescribed overseas jurisdiction that:
(i) however it is expressed, has the effect of determining the person or persons with whom a child who is under 18 is to live, or that provides for a person or persons to have custody of a child who is under 18; or
(ii) however it is expressed, has the effect of providing for a person or persons to spend time with a child who is under 18; or
(iii) however it is expressed, has the effect of providing for contact between a child who is under 18 and another person or persons, or that provides for a person or persons to have access to a child who is under 18; or
(iv)varies or discharges an order of the kind referred to in subparagraph (i), (ii) or (iii), including an order of that kind made under this Act; or
(b)an order made for the purposes of the Convention referred to in section 111B by a judicial or administrative authority of a convention country (within the meaning of the regulations made for the purposes of that section).
overseas jurisdiction means a country, or part of a country, outside Australia.
Regulation 23 of the Family Law Regulations provides as follows:
23 Registration of overseas child orders
(1) Subregulation (1A) applies if:
(a) the Secretary receives:
(i) from a prescribed overseas jurisdiction a certified copy of an overseas child order that was made in that jurisdiction; and
(ii) a certificate signed by an officer of a court or by some other authority in that jurisdiction relating to the order and containing a statement that the order is, at the date of the certificate, enforceable in that jurisdiction; and
(b) there are reasonable grounds for believing that any of the following persons is ordinarily resident in, present in, or proceeding to, Australia:
(i) the child who is the subject of the order;
(ii) a parent of that child;
(iii) a person having the right to have the child live with him or her, or the right of custody of or access to the child, or the right to spend time or communicate with the child.
(1A) The Secretary must send the documents mentioned in paragraph (1)(a) to:
(a) a registrar of the Family Court; or
(b) the registrar of a State Family Court; or
(c) the Registrar of a Supreme Court of a State or Territory.
(2)When the registrar of a court receives from the Secretary the documents referred to in subregulation (1), the registrar shall register the order by filing in the court a certified copy of the order and the certificate relating to the order and noting the fact and the date of the registration on the certified copy.
(3) Where an overseas child order has been registered in accordance with subregulation (2), the order may, on the application of the registrar of a court or a person interested in the order (including the child who is the subject of the order), be registered concurrently in any other court having jurisdiction under the Act.
(4)A certificate by a court that the order has been registered in that court in accordance with subregulation (2) shall be sufficient evidence to enable a concurrent registration to be made.
(5) An overseas child order registered in accordance with this regulation is enforceable throughout Australia until the registration (including a concurrent registration) has been cancelled.
(6)Where it appears to a court that the documents referred to in subregulation (1) have been received by the court other than from the Secretary, the court may, if all other requirements of subregulation (1) are satisfied, register the order.
(7)Where a court exercising jurisdiction under section 70J of the Act substantially varies the order, the registrar of the court shall forthwith forward to the court or to the appropriate authority in the prescribed overseas jurisdiction:
(a) 3 certified copies of the order of the court and the reasons for the order;
(b) a copy of the depositions; and
(c) such further material as the court directs.
(8) This regulation does not prevent a court that has jurisdiction under the Act from receiving evidence of an order made in an overseas jurisdiction (whether or not the jurisdiction is a prescribed overseas jurisdiction), being an order that:
(a) deals with the person with whom a child is supposed to live, spend time or communicate; or
(b) provides for a person to have custody of, or access to, a child.
The applicants have utilized Regulation 23(6), simply sending the documents referred to in Regulation 23(1) to this Court directly through its registry. The Registrar who received it in the Registry considered that the matter is one for a Judge to determine and brought it to my attention. Given that by subregulation 23(6) this Court has a discretion whether to register the North Carolina order or not, if all other requirements of subregulation (1) are satisfied, and there is no delegation of this power to Registrars or Deputy Registrars found in Chapter 18 of the Family Law Rules 2004 (Cth), I accept that the Registrar’s referral to a Judge is the correct course.
Consideration
Regulation 14 of the Family Law Regulations makes it clear that a “prescribed overseas jurisdiction”, as that term is used in s 4(1) of the Family Law Act in the definition of “overseas child order”, is “each country or part of a country” set out in Schedule 1A to the Regulations. The State of North Carolina in the United States of America is included in that schedule.
Is the order an “overseas child order”? In this particular case that question is best determined, in my view, by asking this further question – “However expressed, does it have the effect of determining the person or persons with whom a child who is under 18 is to live or as to which person or persons are to have custody of a child who is under 18?”.
On the certified copy of the North Carolina Court’s Order, there are thirteen paragraphs comprising “findings of fact” and “conclusions of law”, which might be described as reasons in a pre-amble to the actual Orders. Though the child was not yet born at the time the Orders were made, those paragraphs make it absolutely clear to which individual child the actual Orders apply. That is the child that was produced by fertilization of an egg from an anonymous donor and sperm from Mr Grosvenor that was being carried by the “gestational carrier” and was expected to be born in North Carolina on or about a particular date in 2016. That child is the applicants’ child, X.
The operative Orders are then set out in the certified copy of the North Carolina Court’s Orders.
Paragraph 11 of the actual operative Orders provides that the applicants, Mr Grosvenor and Ms Grosvenor, are to be shown on the child’s birth certificate as the parents of the child. Paragraphs 5 and 6 of the actual Orders provide that as the legal parents of the child, Mr Grosvenor and Ms Grosvenor have sole physical and legal custody of the child, and all legal responsibilities, duties, obligations and rights as the legal parents of the child, including the duties of care and financial support, and the right to consent to medical treatments for the child (that is part of what is described in this country as “parental responsibility”).
The child was an unborn foetus of around 38 weeks’ gestation at the time the North Carolina Court’s Orders were made. However, upon the child’s birth, the Orders – already having been made – determined and continue to determine with whom the child was, and is, to live and which persons were, and are, to have custody of her. I do not consider the fact that the child was yet about two weeks from birth at the time the North Carolina Court’s Orders were made makes the Orders any less an “overseas child order” within the meaning of that term, than if the Orders had been made two weeks after her birth. Indeed, this appears to have been the view also taken by Justice Ryan of this Court in her Honour’s first instance decision in Carlton & Bissett and Anor [2013] FamCA 143.
That case concerned children (twins) born in South Africa pursuant to a surrogacy agreement that had been approved by order of the High Court of South Africa according to that country’s law prior to the actual birth of the children. The order of the High Court of South Africa determined parental rights in respect of the yet unborn children. Determining other issues in the Australian proceedings than the question of registration of the South African Court’s Orders, Ryan J nevertheless said at [23]:
Lest it be thought that the issue has been overlooked, it is common ground that although s 70G of the Act confirms that the Family Law Regulations 1984 (Cth) (“the Regulations”) may make provision for the registration of “overseas child orders” the definition for which is satisfied by the South African order, South Africa is not a “prescribed overseas jurisdiction” as a consequence of which the order cannot be registered. (my emphasis)
Clearly, the fact that the children were not yet born at the time the order was made in South Africa did not stop Ryan J from concluding that the order satisfied the definition of being an “overseas child order”. The simple fact that South Africa is not included in the schedule that lists the countries that meet the definition of “prescribed overseas jurisdiction” is what prevented that order from being registered in this Court.
A certified copy of the North Carolina Court’s Orders and a certificate signed by an officer of that Court are provided in the evidence adduced.
The next requirement of subregulation 23(1) is that there are:
“reasonable grounds for believing that any of the following persons is ordinarily resident in, present in, or proceeding to, Australia:
(i)the child who is the subject of the order;
(ii)a parent of that child;
(iii)a person having the right to have the child live with him or her, or the right of custody of or access to the child, or the right to spend time or communicate with the child.”
In my judgment, neither of the parents nor the child in this matter are, at the moment at least, “ordinarily resident” in Australia. Whilst the applicants are Australian citizens, who were residing in Canberra until July 2014, they are not living here now. The applicants and their daughter now reside in the United States. They are not present here in this country at the moment either.
Are any of them “proceeding to” Australia then? In his affidavit, Mr Grosvenor deposes as follows:
25. [The child X] has been granted Australian Citizenship by Descent, she has a valid current Australian passport, and, as such, she is free to travel to Australia without restriction. We have not yet returned to Australia at the time of this affidavit, but will do so at the end of my posting which to the best of my knowledge will be in January 2018.
27. Both [Ms Grosvenor] and I are Australian citizens. As stated previously it is our intention to return to Australia at the end of my posting, noting that this is also referenced in the Order of Declaratory Judgment paragraph one under the heading of “Findings of Fact”.
In her affidavit, Mrs Grosvenor deposes as follows:
22. [The child X] has been granted Australian Citizenship by Descent, she has a valid current Australian passport, and, as such, she is free to travel to Australia without restriction. We have not yet returned to Australia at the time of this affidavit, but will do so at the end of [Mr Grosvenor’s] posting, January 2018.
24. Both [Mr Grosvenor] and I are Australian citizens. It is our intention to return to Australia in the future, noting that this is also referenced in the Order of Declaratory Judgment paragraph one under the heading of “Finding of Fact”.
In his written submissions, the applicants’ solicitor, Mr Page, submits:
It is clearly the intention of the parties to return to [Australia] at the end of Mr [Grosvenor’s] posting in the United States at the end of January 2018. It is likely that he will return to his former position as [an Officer of the Australian Defence Force].
In this regard, I accept that the applicants currently have the intention of returning to Australia in the not too distant future. The question is then, can it be said, in such circumstances that they are “proceeding to” Australia?
The Macquarie Dictionary defines the verb “proceed” as “to move or go forward or onwards, especially after stopping” and “to go on with or carry on any action or process” and “to go on (to do something)” and “to go or come forth.”
The factual circumstances set out in the applicants’ affidavits, particularly their Australian citizenship, years of being ordinarily resident in Canberra prior to relocating to the US for Mr Grosvenor’s career in 2014, the residence of members of their family in Australia, the child’s dual citizenship of the USA and Australia, and their expressed intention to return to Australia in January 2018 upon the conclusion of Mr Grosvenor’s posting to the United States, give me reasonable cause to believe the applicants when they say they intend returning to Australia in the future.
Given that a Judge of this Court deciding the question of whether an overseas child order should be registered in the Court or not is going to be within the jurisdiction (ie this country) whenever undertaking this discretionary exercise pursuant to subregulation 23(6), I am satisfied that the particular meaning to be attributed to “proceeding to” in the circumstances must be one of “coming to” or “travelling to” Australia, whether that be for a visit or to live here.
Accordingly, I am satisfied that Mr Grosvenor, Mrs Grosvenor and their daughter, X, will be coming to Australia at some point in the future, such that they can be considered to be “proceeding to” Australia for the purposes of the regulation. Accordingly, I consider the requirements of subregulation 23(1) to be satisfied and the discretion given in subregulation 23(6) enlivened.
Should the discretion to register the overseas child order be exercised?
There is no list of matters set out in subregulation 23(6) to have regard to when exercising the discretion to register the overseas child order or not. The Full Court has not set out a list of such matters in any decision on the point either. Notwithstanding the absence of such direction, the discretion must nevertheless be exercised judicially.
In a previous judgment in a matter similar to this, decided by me only in December last year, I expressed the following view:
Whilst an overseas child order that came into existence as a consequence of a commercial surrogacy agreement might have difficulty attracting a favourable exercise of the discretion to register it in this Court for public policy reasons, I do not consider that applies in this matter.
Given that the applicants and their solicitor tell the Court that the child in this case was brought into the world with the assistance of an arrangement regulated by a commercial surrogacy agreement, I am clearly required to more deeply consider that proposition expressed by me only six months ago. The public policy context within which this consideration is set includes the fact that in Queensland, New South Wales and the Australian Capital Territory entry into commercial surrogacy arrangements abroad by persons ordinarily resident in those jurisdictions is a criminal offence. Of course, I have already observed that Mr and Ms Grosvenor reside in the USA and not one of those jurisdictions. Nevertheless, they have entered into a commercial surrogacy agreement and they seek the registration of the Court order that gives them the parenting rights over their child in this Court.
Having considered the matter further, particularly having regard to:
·the unique circumstances of this couple and their inability to biologically parent and carry their own baby;
·the well-regulated nature of the surrogacy arrangements entered into between the applicants and the surrogate, notwithstanding its commerciality;
·the judicial oversight to the arrangements given by the Court in the USA, including the procedural fairness offered thereby to the woman who carried the baby for the applicants;
·the acceptance by the Australian Government of that US jurisdiction as a prescribed jurisdiction for the purposes of the registration of ‘overseas child orders’ made in Courts of that jurisdiction, thereby, I am satisfied, signifying the Australian Government’s satisfaction with the standard of the judicial processes that would have occurred in the making of the order; and
·the fact that the arrangements entered into, regardless of their nature, brought into the world a child who is the biological child of at least one of the applicants, the legal child of both of them, who is being loved and raised as their child, who as an Australian citizen, like her parents, will be coming back to live in Australia in the near future, and who has every right to expect that the legal nature of her relationship with both of her parents is appropriately recognised in this country of hers;
I am satisfied that the commercial nature of the surrogacy agreement alone in this particular case should not determine the exercise of discretion against the applicants.
As I also said in my previous decision in December last year, another matter to consider is the fact that the overseas parenting order sought to be registered was made two weeks before the child was actually born whereas under the legislation governing surrogacy in the Australian Capital Territory, parentage orders that regulate the parent-child relationships created through the surrogacy agreement that may be obtained from the Supreme Court of that Territory may only be applied for a minimum number of weeks after the subject child is born.
The Explanatory Notes published in the Australian Capital Territory when the surrogacy legislation was before Parliament casts no light on anything that might make the difference I have identified of some relevance in this matter. As I understand matters, parentage orders, as they are described in the Australian States’ legislation, are of the same effect as the Order of the North Carolina Court under consideration in that they transfer parentage from the carrier to the parent so that legal parental rights are created and are registrable with the government maintained registries of births, deaths and marriages in the respective jurisdictions. That they can only be made after birth in this country whilst they are clearly able to be made in North Carolina (and South Africa) prior to the birth of the subject child is of little apparent consequence and is not, in my judgment, good reason for refusing to register the North Carolina Court’s Orders in this Court.
Mr Page also raises in his written submissions the fact that Division 4.2.8 of the Family Law Rules expressly applies to an application for a parenting order in relation to a child who was born under a surrogacy arrangement. The rules in that Division set out certain evidence that must be included in the evidence given in support of the application. It includes evidence from the applicant or applicants, a copy of the surrogacy agreement, evidence from the surrogate mother, evidence about the child’s identity and evidence about the relevant law in the child’s birth country.
Some of that evidence but not all of it has been given in support of the request for registration of the North Carolina Court’s order. Is that sufficient reason to exercise the discretion not to register it?
As Mr Page submits, this division does not apply as the applicants are not applying for “a parenting order” as that term is defined in s 64B of the Family Law Act. Rather, they are applying for the registration of an overseas child Order under s 70G. The gestational carrier was a party to the proceedings in the North Carolina Court, along with both the applicants. That Court, by its Order and the preamble to its Order, was clearly satisfied that the applicants should have all parental rights, responsibilities and obligations relating to the child then being carried by the gestational carrier transferred or conferred upon them. The evidence put before that Court in support of that application clearly satisfied the Court that the Order it made was the appropriate one to make.
I do not consider that there is now any obligation upon the applicants to adduce all of the evidence that would be required if one or both of them was applying to the Court for a parenting order pursuant to Part VII of the Act. I do not consider the discretion should be exercised against registering the overseas child order in this Court because of these provisions of the Rules that relate to a different type of application.
It is trite to say that every matter that comes before this Court must be considered on its own merits having regard to the application of the current statutory and regulatory provisions and the established authoritative principles to the unique set of facts each matter presents. Clearly, whilst that might result in a discretionary determination to register a particular overseas child order in one case, a different case might not produce the same discretionary outcome.
In this case, I am satisfied that the Order of the North Carolina Court should be registered with this Court pursuant to those statutory and regulatory provisions that provide for that to happen and I will so Order. The applicants are the de jure parents of the child X. She lives in the applicants’ day to day care in the United States. I have not been able to identify any reason why they should not be entitled to the registration of that North Carolina Court’s Order in this Court so that their parent-child relationship with X is recognised appropriately in this country as they desire and for the child’s sake.
I will also make Orders protecting the identity of the applicants, the child and the gestational parent, most particularly by making an order that no person be allowed to search this Court’s file in the matter without first obtaining the leave of a Judge of this Court.
I make the orders set out at the commencement of these written reasons.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 26 May 2017.
Associate:
Date: 26 May 2017
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