Re L - [2022] NSWSC 1155

Supreme Court

New South Wales

Medium Neutral Citation: Re L; Application for Parentage Order [2022] NSWSC 1155
Hearing dates: 26 August 2022
Date of orders: 26 August 2022
Decision date: 26 August 2022
Jurisdiction: Equity - Adoptions List
Before: Parker J
Decision:
See [28]

Catchwords:
FAMILY LAW AND CHILD WELFARE – surrogacy – application for parentage order – non-mandatory precondition for affected parties to undertake counselling before entering surrogacy agreement – birth parents and intended parents received counselling after entering surrogacy agreement – exceptional circumstances justifying making parentage order despite precondition not being satisfied – applicants not advised of requirement to receive counselling before entering surrogacy agreement – birth parents support parentage application – best interests of the child – exceptional circumstances satisfied

Legislation Cited:
Surrogacy Act 2010, ss 18, 35

Cases Cited:
C v B [2013] NSWSC 254
S v B; O v D [2014] NSWSC 1533
Surrogacy Application By a Couple From the United States of America [2017] NSWSC 1806

Category: Principal judgment
Parties: R (First Applicant)
J (Second Applicant)
Representation: In person
R (First Applicant)
J (Second Applicant)

File Number(s): 2022/147872
Publication restriction: Nil

Judgment – EX TEMPORE

(Revised from transcript; issued 30 August 2022)

Before the Court is an application for a parentage order under the Surrogacy Act 2010 (the "Act"). The subject of the application is a female child who is about six months old. I will refer to her in this judgment as “L”.
L was born pursuant to a surrogacy agreement between her birth parents, to whom I will refer as "A” and "M", and her intended parents, who are the applicants in these proceedings, and to whom I will refer as "R" and "J". A is the sister of R. L has been living with R and J since she was discharged from hospital. A and M, as birth parents, fully support the present application. A has appeared (and as it happened has given evidence) at today's hearing.
The Surrogacy Act imposes various conditions which must be satisfied before the Court can make a parentage order of the type that is sought. These include requirements of counselling both for the birth parents and the intended parents.
All of the counselling required by the Act has taken place in the present case. A problem has however arisen because s 35(1) of the Act requires that counselling be undertaken both by the birth parents and the intended parents before the surrogacy agreement is entered into. That timing requirement has not been satisfied.
The surrogacy agreement was signed by the parties on 17 February last year. The birth parents underwent counselling on 19 February and the relevant counselling session for the intended parents was not held until 2 March.
The applicants in the present case told me that the Surrogacy Agreement had been prepared and, as I understood it, the application had been put together with the assistance of, a legal advisor, but the legal advisor has not represented the applicants for the purposes…

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 L

Details

AGLC: Re L [2022] NSWSC 1155
Case: [2022] NSWSC 1155
Decision Date: 26 August 2022

CaseChat Overview and Summary

In the Family Court of Australia, the case of Re L involved an application for a parentage order in the context of a surrogacy arrangement. The applicants, the intended parents, sought the order to establish their legal parenthood of the child born to the surrogate mother, who was also a birth parent. The dispute centred on whether the court should grant the parentage order despite the applicants not fulfilling a non-mandatory precondition that required counselling before entering into the surrogacy agreement. Both the surrogate mother and the intended parents received counselling after the agreement had been entered into, and the surrogate mother supported the parentage application.

The court was tasked with determining whether the non-mandatory precondition of pre-agreement counselling was a requisite for making a parentage order, and if exceptional circumstances existed that would justify overlooking this precondition. The court examined the circumstances under which the applicants were not informed of the counselling requirement and considered the support of the surrogate mother for the parentage application. Additionally, the court assessed whether the best interests of the child were served by making the parentage order, and if the exceptional circumstances were sufficient to warrant an exception to the usual requirement.

The court found that the exceptional circumstances did justify making the parentage order despite the precondition not being satisfied. It was noted that the applicants were not advised of the requirement to receive counselling before entering the surrogacy agreement, and the surrogate mother's support for the application further supported the applicants' case. The court concluded that the best interests of the child were aligned with granting the parentage order and that the exceptional circumstances were met, thus allowing the application to proceed favourably for the applicants.

Orders