Re N - [2025] NSWSC 409

Supreme Court

New South Wales

Medium Neutral Citation: Re N [2025] NSWSC 409
Hearing dates: On the papers; submissions filed 28 March 2025
Date of orders: 30 April 2025
Decision date: 30 April 2025
Jurisdiction: Equity - Adoptions List
Before: Parker J
Decision:
See [53]-[54]

Catchwords:
CHILD WELFARE — Surrogacy — Parentage Order — requirement for report from independent counsellor — counsellor not independent — “exceptional circumstances” relief not applicable — Surrogacy Act 2010 ss 17, 18 — application declined on existing evidence and submissions

Legislation Cited:
Birth, Deaths and Marriages Registration Act 1995
Evidence Act 1995, s 79
Surrogacy Act 2010, ss 17, 18, 35

Cases Cited:
A v X; Re Z [2022] NSWSC 971
AB & CD v EF [2013] NSWSC 866
Australian Securities & Investments Commission v Rich [2005] NSWCA 152
JSC & RSC [2013] NSWSC 440
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re L; Application for Parentage Order [2022] NSWSC 1155
S v B; O v D [2014] NSWSC 1533

Category: Principal judgment
Parties: J and K (Plaintiffs)
G and H (Defendants)
Representation:
Written submissions:
T Beckman (solicitor)
Solicitors:
VRT Lawyers

File Number(s): 2024/00301169
Publication restriction: Nil

JUDGMENT

Before the Court is an application for a parentage order under the Surrogacy Act 2010 (the “Act”). The subject of the application is a child who is almost 12 months old. I will refer to her as N. Through their solicitor, the applicants accept that not all of the statutory requirements for the making of a parentage order have been met. They seek to have the Court make such an order anyway, on the ground that the present case involves “exceptional circumstances”.
N was born pursuant to a surrogacy arrangement between her birth parents (“G” and “H”) and her intended parents (“J” and “K”), who are the plaintiffs in the proceedings. Both couples live in Sydney. N has been living with J and K since she was discharged from hospital.
J and K are a same sex male couple. H is the sister of K. G and H both fully support the application before the Court and have given affidavit evidence in support of it.

Background and procedural history

The issue which has arisen in the present case concerns the requirements contained in the Act for the involvement of a “qualified counsellor” at various stages of the surrogacy process. The Act defines the term “qualified counsellor” as a person who has the experience or qualifications (or both) of a kind required by regulations made under the Act to exercise the functions of a counsellor under the Act.
In this judgment, I will refer to a qualified counsellor under the Act as a “counsellor” for short. Three provisions of the Act require the involvement of such a counsellor.
First, s 35(1) requires that all the affected persons (that is, the birth parents and the intended parents) receive counselling from a counsellor before entering into the surrogacy arrangement (“pre-surrogacy counselling”). The counselling must…

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 N

Details

AGLC: Re N [2025] NSWSC 409
Case: [2025] NSWSC 409
Decision Date: 30 April 2025

CaseChat Overview and Summary

In the Family Court of Australia, the case of Re N involved a dispute over the issuance of a Parentage Order under the Surrogacy Act 2010. The applicants sought the order to recognise their status as the parents of a child born to a surrogate mother. The surrogate mother and her husband opposed the application, raising issues about the independence of the counsellor who assessed the applicants' suitability.

The central legal issue before the court was whether the requirements of the Surrogacy Act 2010 were satisfied, specifically concerning the necessity for a report from an independent counsellor. The applicants argued that the counsellor's perceived lack of independence did not invalidate the assessment, and that exceptional circumstances justified bypassing the requirement. The court needed to determine the legal effect of the counsellor's lack of independence and whether the exceptional circumstances exception applied.

The court held that the counsellor was not independent due to her prior involvement with the applicants, which contravened the statutory requirement. This lack of independence meant that the report could not be relied upon. The applicants' argument for exceptional circumstances was rejected as the legislation did not provide for such an exception. The court concluded that the statutory requirements could not be deviated from and that the existing evidence and submissions were insufficient to grant the Parentage Order. The application was therefore declined.

The final orders of the court were that the application for a Parentage Order be dismissed due to the failure to comply with the statutory requirements for an independent counsellor's report. No Parentage Order was issued in favour of the applicants.

Orders