Re: Halvard
[2016] FamCA 1051
•5 December 2016
FAMILY COURT OF AUSTRALIA
| RE: HALVARD AND ANOR | [2016] FamCA 1051 |
| 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 arrangement between the applicants and a “gestational carrier” – Where the applicants are the biological parents 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) ss 4, 64B, 70G, 70H, 70J Family Law Regulations 1984 (Cth) 14, 23, Schedule 1A Family Law Rules 2004 (Cth) Division 4.2.8, Chapter 18 Surrogacy Act 2010 (Qld) |
| Carlton & Bissett and Anor [2013] FamCA 143 |
| FIRST APPLICANT: | Mr Halvard |
| SECOND APPLICANT: | Ms Fyodor |
FILE NUMBER: By Court Order File Number is suppressed
| DATE DELIVERED: | 5 December 2016 |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | By way of Written Submissions |
REPRESENTATION
By Court Order the names of lawyers have been suppressed
Orders
That the Orders of the … Court …, … in the State of Tennessee, United States of America on 16 December 2014, 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, the name of the applicants’ lawyers, and any other fact or matter that may identify the child or his parents shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover sheets excluding the registry, file number, and lawyers’ names and details, as well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 and lawyers’ names.
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: Halvard and Anor 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 Halvard |
First Applicant
And
| Ms Fyodor |
Second Applicant
REASONS FOR JUDGMENT
By Application in a Case signed 31 October 2016 and forwarded to a Registrar of this Court, the applicants, Mr Halvard and Ms Fyodor ask the Court to register certain Orders made by a Court in Tennessee, in the United States of America. They have also asked for the matter to be determined on the papers in chambers, if possible. The matter was referred to me by the Registrar 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.
Each of the applicants has sworn to an affidavit on 21 October 2016, copies of which they rely upon in support of their application. Both of the applicants are professionals living in City B. They are married. Mr Halvard is an Australian. Ms Fyodor is an American. They are the parents of a little boy who was born in 2015 in Tennessee. He is their biological son. Ms Fyodor did not carry him through pregnancy though. She suffers from a medical condition that prevented her from carrying a baby through pregnancy to full-term.
The applicants’ little boy, X (“the child”), came into the world through assisted reproductive technology by the in vitro fertilisation of an ovum from Ms Fyodor with a sperm from Mr Halvard and with the help of another woman into whose womb an embryo that was brought into existence was transferred. The child’s birth was facilitated in Tennessee through a surrogacy agreement between the applicants and the woman who carried the baby through gestation to birth. A copy of the 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.
Mr Halvard annexes a certified copy of Orders made by the Court in Tennessee on 16 December 2014, two months before the child was born. It has been referred to in the applicants’ solicitor’s submissions as a “pre-birth” order.
Mr Halvard and Ms Fyodor as well as the woman who carried the baby until its birth, petitioned that Court for the Order. The medical centre where the child was born was the named respondent to those proceedings. Each party was legally represented. Mr Halvard and Ms Fyodor had separate legal representation from the woman who has been described as the “gestational carrier”. The Court’s Orders made Mr Halvard and Mr Fyodor the legal parents of the child from the time he was born, as well as already being his biological parents. The Orders were as follows:
IT IS HEREBY ORDERED ADJUDGED AND DECREED that [Mr Halvard] and [Ms Fyodor] be shown as the father and mother of the child to whom [Ms S] expects to soon give birth at [T] Medical Center (the Respondent Hospital) on the child’s birth certificate and that the birth certificate of the child shall so state; that [Ms S] shall not be shown as a parent on the birth certificate, and that the Respondent Hospital shall be and is relieved of any and all liability to any and all of the parties incurred as a result of the hospital’s recognition of [Mr Halvard] and [Ms Fyodor] as the parents of the baby to whom [Ms S] will give birth and the release of this baby to [Ms Fyodor] and [Mr Halvard] at the time of the discharge from the facility.
IT IS FURTHER ORDERED that, as the legal parents of the child, [Mr Halvard] and [Ms Fyodor] have all parental rights and responsibilities pertaining to the child including the right to legal and physical custody of the child and the right to make health care decisions for the child as well as the responsibility to provide for his/her care, which responsibility includes the obligation to pay for the care rendered to the baby by the Respondent Hospital, and all other health care providers during the baby’s stay at Respondent Hospital;
IT IS FURTHER ORDERED that the parties may proceed in this action using pseudonyms in the style of the case and that the Clerk and Master shall maintain the Court’s record of the proceedings of this matter under seal in such a manner as to maintain the protection of the privacy of the parties to this matter as well as the privacy of persons who may be affected by the matters addressed herein in the future. The Clerk shall consider and utilize the procedures commonly used in cases of adoption to ascertain and implement a method for maintaining the record of this case.
Costs of this cause are assessed to the Petitioners [Mr Halvard] and [Ms Fyodor] for which let execution issue if necessary.
Mr Halvard also annexes a certified copy of a Birth Certificate for the child, showing him and Ms Fyodor to be the mother and father of the child. As a result of being born in the USA, the child is a citizen of that country. His parents applied for and obtained Australian citizenship for him as well, on the basis of the Australian citizenship by descent from his father, Mr Halvard.
Mr Halvard and Ms Fyodor live with the child in City B in the United States. They wish to have the Orders of the Tennessee Court registered in this Court in Australia pursuant to legislative and regulatory provisions contained within the Family Law Act 1975 (Cth) and the Family Law Regulations 1984 (Cth). They want this, it is said, as they intend to travel with the child to Australia from time to time to visit members of Mr Halvard’s family who live there. They say they have also not ruled out moving to Australia to live as a family in the future. They seek to have the Orders registered so that their parent-child relationship with the child X is as lawfully recognised in Australia as it is in the USA.
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.
In this matter, the applicants first caused the matter to be sent to the Secretary (through the Commonwealth Department of the Attorney-General) and the matter was ultimately sent by the Department to a Registrar of the Court in another Registry of this Court. Despite the fact that Subregulation 23(2) uses the mandatory words “shall register” the Registrar did not do so and gave some written reasons for not doing so. I have seen a summary of those, but I am not determining this matter as a review of the Registrar’s decision. Consequently, I need not consider the merits of the Registrar’s decision not to register the Order.
The applicants have now utilised Regulation 23(6) simply by sending the documents referred to in Regulation 23(1) to this Court directly through this Registry. The Registrar who received it in this 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 Tennessee 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 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 A 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 Tennessee Court’s Order that is in evidence there are eight paragraphs of what 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 fertilisation of an egg from Ms Fyodor by sperm from Mr Halvard that was being carried by the “gestational carrier” and was expected to be born at the named medical centre in Tennessee two months later. That child is the applicants’ child, X.
The operative Orders are then set out in the certified copy of the Tennessee Court’s Orders.
The first paragraph of the actual operative Orders provides that the applicants, Mr Halvard and Ms Fyodor, are to be shown on the child’s birth certificate as the parents of the child. The second paragraph of the actual Orders provides that as the legal parents of the child, Mr Halvard and Ms Fyodor have all parental rights and responsibilities pertaining to the child, including the right to legal and physical custody of the child and the right to make health care decisions for the child (that is part of what is described in this country as “parental responsibility”).
Although the child was an unborn foetus of around 30 to 32 weeks’ gestation at the time the Tennessee Court’s Orders were made, 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 him. I do not consider the fact that the child was yet about two months from birth at the time the Tennessee 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 months after his 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 orders”. 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 Tennessee 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, none of those persons in this matter can properly be considered to be “ordinarily resident” in Australia. Mr Halvard, who is Australian, no longer lives “ordinarily” in this country. He is now, like his wife and son, ordinarily resident in City B. None of them are present here in this country at the moment either.
Are any of them “proceeding to” Australian then? In his affidavit, Mr Halvard deposes as follows:
36. I confirm that it is [Ms Fyodor] and my intention to travel between Australia and the United States of America with [the child] when he is a little older. I have family in Australia and, as such, I anticipate that throughout [the child’s] life, he will be travelling to Australia from time to time to visit family. This is one of the reasons why I was eager for him to attain Australian Citizenship by Descent and acquire an Australian passport. At this stage I do not have plans to return to Australia on a full time basis, however [Ms Fyodor] and I have not ruled such out for the future.
In her affidavit, Ms Fyodor deposes:
23. I confirm that it is [Mr Halvard’s] and my intention to travel between Australia and the United States of America with [the child]. [Mr Halvard] has family in Australia, as such, I anticipate that throughout [the child’s] life, he will be travelling to Australia from time to time to visit family. At this stage, we do not have plans to return to Australia on a full time basis, however we have not ruled such out as a possibility for the future.
In his written submissions for the applicants, their solicitor submits that the “intention of the parties from time to time to travel with their son to Australia provides adequate compliance” with the provisions of the Regulations. In this regard, I accept that the applicants currently have the intention of travelling with the child to Australia some time during his childhood, although there is no evidence before me that they have any current plans actually in place to do so. 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 forwards 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 Mr Halvard’s affidavit, particularly his Australian citizenship, his years of being ordinarily resident in Australia prior to going to the US to further his career and meeting and marrying an American citizen, the residence of members of his family still being in Australia, the child’s dual citizenship of the USA and Australia, and the expressed intention to visit Australia with his American wife and their son from time to time when their son is a little older, give me reasonable cause to believe the applicants when they say they intend visiting Australia with their son from time to time 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 Halvard and/or Ms Fyodor and their son, X, will be coming to or travelling 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 his written submissions for the applicants when addressing discretionary considerations, the applicants’ solicitor refers to public policy considerations surrounding surrogacy arrangements. He refers to the fact that the Australian States of New South Wales and Queensland as well as the Australian Capital Territory have expressly criminalised the entry into commercial surrogacy arrangements abroad by persons ordinarily resident in those States or in the ACT and he points out that as the applicants are not ordinarily resident in one of those places the prohibition does not apply to them. It appears thereby, that the solicitor’s submission is that, consequently, the discretion should not be exercised against the registration of the Tennessee Court’s Order.
With all due respect, I do not quite understand the submission, as I do not understand the surrogacy agreement that the applicants entered into to have been a commercial one. The Queensland Surrogacy Act 2010 defines a commercial surrogacy arrangement as one in which a person receives a payment, reward or other material benefit or advantage other than the reimbursement of the birth mother’s reasonable surrogacy costs. The New South Wales’ legislation defines commercial surrogacy in very similar terms, also permitting payment to the birth mother for reimbursement of her reasonable surrogacy costs.
The agreement in this case between the applicants and the gestational carrier in Tennessee was one in which the gestational carrier was reimbursed by the applicants for all of her pregnancy related out-of-pocket expenses. The terms of the agreement that provided for that certainly appeared quite generous but not so generous that I would consider it a commercial surrogacy agreement masked as one in which reimbursement is provided.
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.
Another matter to consider, at least in my judgment, is the fact that the overseas parenting order sought to be registered was made several weeks before the child was actually born whereas under the legislation governing surrogacy in New South Wales and Queensland, parentage orders that regulate the parent-child relationships created through the surrogacy agreement that may be obtained from the Supreme Courts of those States may only be applied for a minimum number of weeks after the subject child is born.
The Explanatory Notes published in New South Wales and Queensland when the surrogacy legislation was before the Parliaments in each of those States cast 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 Tennessee Court under consideration in that they transfer parentage from the carrier to the parents 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 Tennessee (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 Tennessee Court’s Order in this Court.
Another matter raised by the applicants’ solicitor in his written submissions is 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 Tennessee Court’s order. Is that reason to exercise the discretion not to register it?
As the applicants’ solicitor points out, the applicants are not applying for “a parenting order” as that term is defined in s 64B of the Family Law Act. 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 Tennessee 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 Tennessee 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 biological and, since the order of the Tennessee Court, the de jure parents of the child. He lives in their day to day care in City B. I have not been able to identify any reason why they should not be entitled to the registration of that Tennessee Court’s Order in this Court so that their parent-child relationship with the child is recognised and recognised appropriately in this country as they desire.
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-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 5 December 2016.
Associate:
Date: 5 December 2016