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

1. 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”.

2. 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.

3. 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

4. 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.

5. 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.

6. 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 address the proposed arrangement itself and its “social and psychological implications”.

7. Second, s 35(2) requires that, following the birth of the child and before consenting to the parentage order, the birth parents receive further counselling from a counsellor (“relinquishment counselling”). Again, the counselling must address the surrogacy arrangement and its social and psychological implications.

8. Third, s 17 of the Act requires that an application for a parentage order be supported by a report from an independent counsellor. The section relevantly provides:

17   Independent counsellor’s report

(1)  An application for a parentage order must be supported by a report about the application prepared by an independent counsellor.

…

(7)  For the purposes of this section, an independent counsellor is a qualified counsellor who:

(a)  is not the counsellor who counselled the birth mother, the birth mother’s partner (if any) or an intended parent about the surrogacy arrangement, to meet a precondition to the making of a parentage order, and

(b)  is not, and is not connected with, a medical practitioner who carried out a procedure that resulted in the conception or birth of the child.

9. Strictly speaking, all that s 35 requires is that it be proved to the satisfaction of the Court that the relevant counselling has been provided to the birth parents or the intended parents, as the case may be. This could if necessary be proved by evidence from the parents themselves. But it is usual for the evidence to be provided in a formal report from the counsellor.

10. By contrast, s 17 requires the provision of a report by the counsellor to the Court. It does not in terms require that the counsellor provide any further counselling, but it does contemplate that, at least in the usual case, both the intended parents and the birth parents will be interviewed by the counsellor.

11. In the present case, the pre-surrogacy counselling was provided to both the birth parents and the intended parents, as is permitted by s 35(1)), by a single qualified counsellor, Ms Beverley Aronstan. The counselling was provided in February and March 2022 and is the subject of a pre-surrogacy report from Ms Aronstan which is in evidence.

12. The relinquishment counselling in the present case was provided by another counsellor, Mr Ian Trevallion. The counselling was provided on 30 August last year and was the subject of a report dated 3 September.

13. On the same day as Mr Trevallion provided relinquishment counselling to the birth parents, he interviewed both the birth parents and the intended parents for the purposes of preparing a s 17 report. He issued the report on 10 September.

14. The application itself had actually been commenced by summons on 15 August. The summons was supported by affidavits from each of birth parents and the intended parents. On 20 September, a further affidavit from Mr Trevallion was filed in support of the application, which attached his relinquishment report and his s 17 report.

15. Following the filing of further affidavits required for the purposes of the application, it was referred to me in chambers. I was concerned about the s 17 report prepared by Mr Trevallion. On the face of it, Mr Trevallion was not an “independent counsellor” because he had provided relinquishment counselling to the birth parents.

16. Following correspondence with the applicants’ solicitor, Ms Ruggero, I raised the question at a directions hearing on 11 November.

HIS HONOUR: Mr Trevallion has done two counselling reports. I find it difficult to see how he could possibly satisfy the requirements of subs (7)(a).

RUGGERO: Yes. I see what you're referring to, your Honour.

HIS HONOUR: He in fact seems to have interviewed the two on the same day.

RUGGERO: Yes.

HIS HONOUR: It seems rather surprising that somebody as experienced as Mr Trevallion would've been unaware of the requirements of s 17.

RUGGERO: Yes. I'm quite surprised by that also.

HIS HONOUR: Mr Trevallion asserts in his affidavit that he's independent, but he hasn't actually complied with s 5(b) either.

RUGGERO: Yes. In order to progress the matter, then Mr Trevallion couldn't be used for either of [the s 35(2) or the s 17 reports], could he?

HIS HONOUR: I'm not sure about that, I don't see why you couldn't rely on him for the s 35 and just get another independent counsellor's report.

RUGGERO: Okay. If that's the most appropriate way forward, I can arrange that in a timely manner.

17. Ms Ruggero’s response was to obtain a new relinquishment report from a different counsellor, Ms Katrina Hale. On 10 December, Ms Ruggero forwarded a copy of the new report and invited the Court to reconsider the application.

18. I was not sure that this solved the problem which I had raised at the directions hearing. I had a response sent in the following form:

His Honour has the preliminary view that the contravention of s 17 of the Surrogacy Act 2010 (NSW) cannot be retrospectively undone by the filing of a new relinquishment report which post-dates Mr Trevallion’s independent counsellor’s report. You may of course make submissions to the contrary. Alternatively, his Honour, at this time, sees no reason why a new s 17 report could not be obtained from an independent counsellor and the existing relinquishment report of Mr Trevallion retained. This was the idea mentioned at the directions hearing on 11 November 2024.

19. In response, a further s 17 report was commissioned from Mr Trevallion. The report stated:

Parentage Order counselling was initially and erroneously undertaken prior to the relinquishment counselling of the surrogate, and as a result a further session of counselling has been undertaken with all parties, and information brought up to date.

The report did not address the issue of independence.

20. Mr Trevallion’s new report was sent to the Court on 3 February under cover of an email requesting that the Court “advise” whether the requirements of the legislation had now been met. I was not satisfied that they had. A response was sent which stated:

His Honour has the preliminary view that an independent counsellor’s report must be sought from someone other than Mr Trevallion, as he cannot satisfy the definition of an independent counsellor for the purposes of s 17 of the Surrogacy Act 2010 (NSW) in this matter, because of his previous provision of s 35(2) relinquishment counselling to the birth parents.

21. On 12 March the applicants filed a further two affidavits, indicating that the continuing proceedings were imposing a substantial degree of stress and cost. No submissions or covering note accompanied those affidavits, and it was unclear to me whether the Court was being asked to undertake a further reconsideration of the application, and if so, on what material.

22. In order to bring the application to a head, I listed the proceedings before me on 14 March for further directions. But shortly before the scheduled time for the hearing, the solicitors for the applicants sent an email foreshadowing the filing of written submissions. As I understood the email, the Court was being invited to deal with the application on the papers, as ultimately filed. In due course, affidavits from each of the birth parents were filed together with written submissions formally requesting the making of a parentage order in accordance with s 18(2) of the Act.

Exceptional circumstances

23. S 18 of the Act reads:

18   Making of parentage order by Court

(1)  The Court may make a parentage order only if satisfied that the preconditions to the making of a parentage order have been met.

(2)  However, the Court may make a parentage order, despite not being satisfied that a precondition to the making of the order has been met, if:

(a)  the precondition is not a mandatory precondition to the making of a parentage order, and

(b)  the Court is satisfied that exceptional circumstances justify the making of the parentage order, despite the precondition not having been met.

(3)  In deciding whether to make the parentage order, the Court may also have regard to any other matter it considers relevant precondition

Evidence in support of the Application

24. Both birth parents and both intended parents deposed that they relied upon Mr Trevallion’s advice throughout the surrogacy process. In the affidavit of J dated 12 March this year he deposed at [16]-[18]:

When we first attended Ian Trevallion on 30 August 2024, we did so having made our own inquiries as to suitable and required counsellors for the purpose of obtaining the correct Reports for our Application for Parentage. At the time, it was our genuine understanding and belief, that Mr TrevaIlion was able to undertake the Section 17 Report and 35(2) Report. This was reiterated by Mr Trevallion, who indicated to us that he was able to undertake the reports, and that the reports he would do following our interviews, would be in compliance with the requirements under the Surrogacy Act.

The first guidance from the Court was to seek a second report in order to satisfy the independence requirement. On that basis, [H] and [G] attended upon Katrina Hale for a Section 35(2) Relinquish Report, and we were then of the understanding that this would satisfy any discrepancy and that we would be in compliance with the requirements under the Surrogacy Act.

We were then of the understanding Ian Trevallion's report needed to be updated so that it did not pre-date Katrina Hale's report and that once this was done, the Parentage Order would be made. When we attended Ian Travallion, he confirmed that this would satisfy the requirements and correct the timeline of when we had obtained the requisite reports.

25. J also deposed that the costs of counsellor’s reports in this matter had so far been around $4,000. He continued at [20]-[23]:

We have made inquiries as to obtaining a third report from a separate counsellor. We have been advised that as there are limited counsellors who are able to prepare the required report, it is likely that an interview will be held in around two (2) months and have been quoted for fees as to $3,500.

I am concerned that the further delay caused by obtaining a further Report will be detrimental to [N], in circumstances where she will be one year old by the time the Report is likely to be undertaken.

Although the process has been extremely rewarding as we are now the parents of [N], it has still been a stressful process, given the unexpected prolonging and uncertainty of obtaining a Parentage Order from the Court.

It is also placing immense pressure on both ours and our surrogates' family units, none of which is in the best interests of [N]. I am aware from [G] and [H] that the unexpected and significant delay in making a Parentage Order, is causing unnecessary stress given the present uncertainty of the situation and the desire for all of us to want to have the parentage order made, so that [N]'s life can formally begin with [K] and I as her parents, and [G] and [H] as her Aunts.

26. In her affidavit of 24 March, G deposed:

I did not anticipate that there would be such a delay in obtaining a Parentage Order. The uncertainty of not having an Order for Parentage in favour of [K] and [J] is causing myself extreme distress, given the uncertainty of the legal care and guardianship of [N]. For example, a concern of mine is that I do not wish to be in a position where a major medical decision is required to be made and [K] and [J] are denied the ability to make that decision, given such a decision would ultimately fall to myself and [H]. This is not my intention or desire and I wish to fully embrace my role as Aunt for [N], not parent.

…

I am aware that there is an issue in respect of how the relevant reports for Ian Travallion were obtained. It was always my initial understanding that Ian Travallion was able to undertake both the section 17 and section 35(2) reports. When I was informed of this discrepancy, we followed the guidance of Ian Travallion and Katrina Hale, and believed that once we had obtained Katrina Hale's report of 2 December 2024, that an updating report of Ian Travallion would satisfy the counselling and report requirements.

Submissions

27. The application was supported by a written submission from Mr Tyson Beckman, solicitor. He presented the question as being whether there were exceptional circumstances within the meaning of s 18(2) which justified “deviating from the requirements of ss 17 and 35(2) of the Act”. He submitted that the provision of “counselling reports pursuant to ss 17, 35(1) and (2)” were not stated to be mandatory pre-conditions. The Court therefore had power to dispense with compliance with those provisions under s 18(2), and in the circumstances was justified in doing so.

28. In support this submission, Mr Beckman first referred me to the statement of White J in S v B; O v D [2014] NSWSC 1533. In that case, White J was addressing a case where the child’s birth had not been properly registered in accordance with the requirements of s 38(1) of the Act. This was because the birth parents had registered the intending father as the child’s father on the birth certificate alongside the birth mother. This was contrary to the requirements to the Birth, Deaths and Marriages Registration Act 1995, which provided that the birth father was conclusively deemed to be the child’s father. The step had been taken on the basis of legal advice provided to the birth parents by their solicitor, so as to make it easy for the intended parents to deal with governmental and medical requirements.

29. White J said:

The phrase "exceptional circumstances " is used in a wide variety of legislation. The phrase is to be construed in the context in which it appears and having regard to the purposes of the legislation. In its ordinary sense circumstances can be exceptional if they are out of the ordinary. Sometimes the expression "exceptional" is used as a synonym for "special ". In R v Kelly (Edward) [2000] QB 198 Lord Bingham of Cornhill CJ said (at 249):

"We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."

Although said in a very different context, that description accords with the ordinary English sense of the word.

…

I am satisfied in the present case that there are exceptional circumstances that justify ignoring the non-satisfaction of the pre-condition in s 38. I think it must be unusual and out of the ordinary for parties to be advised by a solicitor that they need not comply with the requirements of the law. That is what the solicitor's advice amounted to in this case. No doubt the advice was well-meaning, but it was wrong.

30. Mr Beckman submitted that the present case was the same. As shown by their affidavits, all the affected parties had relied on a representation by Mr Trevallion that he was able to provide both the relinquishment counselling and the independent counsellor’s report in support of the application. Mr Beckman submitted that, on the evidence, the affected parties had clearly acted in good faith, and the observations made by White J were in point.

31. Mr Beckman next pointed to the delay in the progress of the application. He submitted that, having regard to the six-month limit imposed by s 16, it would usually be expected that the application would have been determined by now. As it was, on the evidence, a further two months or so would be required to obtain a fresh s 17 report. Mr Beckman submitted that this factor likewise took the application outside the ordinary course and justified the invocation of s 18(2).

32. Finally, Mr Beckman referred me to the following statement of Ball J, as his Honour then was, in AB & CD v EF [2013] NSWSC 866 at [11], in connection with s 18:

In considering whether there are exceptional circumstances which would justify the Court determining the application notwithstanding that it was brought late, the Court must have regard to the purpose of the provision from which exception is sought.

33. Mr Beckman submitted that the purposes of ss 35(2) and 17 were threefold. First, to ensure that the best interests of the child were secured by the making of a parentage order sought; second, the ensure that the parties fully understood and comprehended the effect of the parentage order; and, third, to assist the Court in determination of the application.

34. As to the best interests of the child, Mr Beckman submitted that the evidence of the affected parties clearly demonstrated that this condition was satisfied. In particular, Mr Beckman submitted that there was really no practical alternative but to make the order and confirm the domestic arrangements which had been in place since the child was born.

33. As to the second factor, Mr Beckman relied on what I said in Re L; Application for Parentage Order [2022] NSWSC 1155, a case where the pre-surrogacy counselling had been undertaken, but not prior to entry into the surrogacy agreement: [27].

Counselling is desirable because it helps to reduce the risks of misunderstandings or second thoughts which might otherwise, if they arose later, lead to dispute and dissension between the birth parents and the intended parents and which could be to the detriment of the child. In the present case, the counselling has clearly served the necessary purpose albeit that it was undertaken late. It would in no way promote L's interests not to proceed with a parentage order.

36. As to assisting the Court in the determination of the application, Mr Beckman emphasised that the report, while important, was only provided to assist the Court. The Court was not bound by Mr Trevallion’s opinions and the prime duty of Mr Trevallion, as an expert, was to identify the facts and the reasoning process which justified the opinions expressed, leaving it to this Court, as the tribunal of fact, to evaluate that opinion: Australian Securities & Investments Commission v Rich [2005] NSWCA 152 at [105].

37. Mr Beckman submitted that Mr Trevallion’s relinquishment counselling and independent counsellor’s reports had complied with the necessary requirements (indeed, in the case of the relinquishment counselling report, over-complied with it, by providing information at greater length then was actually required).

Conclusions

38. I do not agree that ss 17 and 35 should be bracketed together for the purposes of this application, as Mr Beckman has done. No question arises in the present case as to the requirements of s 35(2). There was nothing to prevent Mr Trevallion from providing the relinquishment counselling to the birth parents. The problem only arose because, having done so, he then provided the independent counsellor’s report.

39. It is now accepted that Mr Trevallion lacked the independence required by s 17(7), and this problem could not be cured by having Ms Hale providing further relinquishment counselling. This was because of his prior involvement in providing relinquishment counselling. The Court’s focus must be on dispensing with the requirement for independence in s 17(7).

40. So far as the general principles which govern the application of s 18(2) are concerned, I remain of the view expressed in Re L:

In my view in construing the phrase "exceptional circumstances" in section 18(2), it is important to bear the context in mind. Section 18(1) lays down the general rule that the preconditions in the Act must be complied with if an order is to be made. Subsection (2) is concerned with the Court dispensing or making an exception to that general rule in the circumstances of the case. It seems to me that, generally, "exceptional circumstances" mean circumstances which are "exceptional" in the context of the application of the general rule in question. The question is whether the circumstances are such to “justify”, to use the language of s 18(2)(b) itself, a departure from that rule.

It is sometimes said that "exceptional circumstances" cannot be circumstances that are regularly or routinely encountered. I do not see this as inconsistent with what I have just said. Clearly it would be wrong for the Court rely upon circumstances as being “exceptional” if they are circumstances in which the general rule would have been regularly or routinely expected to apply. By doing so the Court would effectively be disregarding the will of Parliament as expressed in the general rule. But in my view, the question is not so much how often the circumstance in question occurs, but rather is whether its nature is such as to take it outside the cases in which the general rule would regularly be expected to apply.

41. In other words, “exceptional circumstances” for the purposes of s 18(2) are circumstances which justify the making of an exception to the rule in question. As Ball J said, this requires some analysis from the Court of the rationale of that rule. It is not a merely mechanical task of deciding how frequently (if the evidence before the Court allowed that sort of judgment to be made) non-compliance might occur.

42. I do not think that the comments I made in Re L in this regard provide any support for Mr Beckman’s argument in the present case. Those comments addressed the requirements for counselling in s 35. As already noted, s 17 does not require counselling as such. It requires the counsellor to provide a report to the Court on the merits of the application.

43. While it is true that the Court is not bound by the opinion expressed in the report, the legislature has gone to the trouble of requiring an application to be accompanied by such a report, and has effectively deemed the qualified counsellor who prepares it as an expert in the relevant subject matter for the purposes of the law of evidence (Evidence Act 1995 s 79). As the expert witness code of conduct under the rules recognises, it is important that expert evidence should be independent, and s 17(7) is clearly a statutory recognition of that requirement, and the requirement that the report be provided by an independent counsellor in s 17 is a clear statutory recognition of that imperative.

44. In these circumstances, failure to comply with the requirements of independence would arguably deprive a report so produced of much of its value. But it is not necessary to consider this question further. That is because I think there are other obstacles to Mr Beckman’s argument.

45. In the first place, there is another point of distinction with Re L. In that case the counselling had not been provided before entry into the surrogacy arrangement, and it was impossible therefore to comply with it. That is not the case here. I find it difficult to accept that the failure to comply with a requirement which could still readily be satisfied could ever amount to an “exceptional circumstance” for the purposes of s 18(2).

46. I see the present case as being closer to that considered by Hallen J in JSC & RSC [2013] NSWSC 440, where the applicants failed to provide sufficient evidence of the earlier receipt of legal advice as required by s 36. His Honour said at [27]:

Even though each of the legal practitioners practises in Western Australia, I considered that it would not be difficult, or expensive, or unduly time consuming, to obtain an affidavit from each legal practitioner that complied with the rule and which dealt with the matters referred to in s 36 of Act and the rule. It follows that I was not satisfied that it was appropriate to dispense with the requirement provided by the rule in the circumstances of the case.

47. No doubt requiring a fresh s 17 report to be prepared by an independent counsellor will take some additional time and will result in some additional costs. But I do not see the lapse of a further two months or so being of any great weight for s 18 purposes, especially when it results from the way in which the application for a parentage order has been presented.

48. As to the additional costs, there is no evidence that the applicants are unable to meet the expense of paying for a fresh s 17 report to be prepared by an independent counsellor. And, on the face of it, it is hard to see why they should have to bear the costs of a report which was plainly defective, or for the additional reports from Mr Trevallion (or from Ms Hale for that matter). It is unnecessary to consider Mr Trevallion’s professional obligations to the applicants. On any view their solicitors should have known better.

49. There is a yet more fundamental problem with Mr Beckman’s argument. Section 35 appears in Division 4 of Part 3 of the Act, which is headed “Preconditions to making of parentage order”. Section 21 expressly states that the division sets out the preconditions. But s 17 does not appear in that division. This point was made by Darke J in A v X; Re Z [2022] NSWSC 971. His Honour said at [24]-[27]:

[I]t is Div 4 of Pt 3 of the Surrogacy Act that enumerates the preconditions, mandatory and non-mandatory, to the exercise of the Court’s discretion under s 12(1) of the Act to make parentage orders. Section 18(2) of the Surrogacy Act only countenances relief from performance with respect to non-mandatory preconditions found within that Division (cf BB v DD; Re AA and Surrogacy Act 2010 (NSW) [2015] NSWSC 1095 at [34]-[36] per Robb J).

Section 17 mandates the provision of an independent counsellor’s report that includes, among other things, the independent counsellor’s opinion as to whether the best interests of the child would be served by making of orders sought by the applicants (Surrogacy Act s 17(2)). While the obligation found in s 17 of the Act is not itself a precondition, in the sense that that term is understood in Div 4 of Pt 3 of the Act, to the making of a parentage order, provision of a supporting counsellor’s report is expressed to be an indispensable requirement of an application brought under s 12(1) of the Act.

Put another way, the Court cannot sanction a failure to abide by s 17 of the Surrogacy Act by recourse to s 18(2) of the same. Instead, the consequence of non-compliance with s 17, as a statutory requirement, is to be determined by reference to any indications found within Act as to what results therefrom (cf, in a different context, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91] per McHugh, Gummow, Kirby and Hayne JJ).

Were it necessary for me to decide this question, I would have found that the Surrogacy Act does not permit the making of parentage orders without the Court first having been provided with an independent counsellor’s report, compliant with the terms of s 17. In the words of that section, such a report must be provided to the Court in support of an application for parentage orders: it must contain the independent counsellor’s opinion on whether the orders sought are in the affected child’s best interests; and it must set out the reasons for the independent counsellor’s opinion. Each of these imperative commands suggests that strict compliance with the terms of s 17 is necessary (see, eg, Varverakis v Police (2003) 225 LSJS2 86; [2003] SASC 20 at [14] per Gray J. Cf Application by JSC & RSC [2013] NSWSC 440 at [24]-[27] per Hallen J).

50. I respectfully agree with his Honour. In my view this conclusion is supported by a further consideration. Section 16, which appears in the same division as s 17, imposes a time limit of six months for the making of applications, but then provides expressly for the Court to be able to entertain an application if “exceptional circumstances” exist. There is no equivalent provision in s 17. In my view, the absence of such a provision in s 17 reinforces the conclusion reached by his Honour. If s 17 has not been complied with, then the Court has no power to dispense with non-compliance pursuant to s 18 or any other provision of the Act.

51. A v X; Re Z is different from the present case, in that case no report whatever had been provided in support of the application. In the present case a report has been provided, but it is defective and does not comply with the requirements of the section. The question in the present case is whether the particular requirement, namely the requirement of independence, is a mandatory one: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91].

52. Although Project Blue Sky was referred to in submissions, no argument on this question was presented by Mr Beckman. In theory, it would still remain open to argue that the requirement of independence was not a mandatory one, and that Mr Trevallion’s report satisfied the requirements of s 17 despite his lack of independence. If that was so, then the requirements of s 17 would be satisfied and no dispensation would be required. However, in the circumstances of the case the applicants might be better advised simply to obtain a fresh report from an independent counsellor and proceed on that basis.

53. For these reasons, I decline to make a parentage order on the ground of “exceptional circumstances”. This of course is not a final refusal of the application, and the applicants are free to resubmit the application with further evidence or submissions to address what I have said in this judgment. I will leave it to the applicants to consider what steps they wish to take, and the application may be reactivated in due course. When the application comes back to the Court, there will need to be evidence that the applicants have not been required to meet the legal costs and counsellor fees which have been wasted as a result of the non-compliance with s 17 of the Act, or which explains why those fees and costs have been properly charged to the applicants despite that non-compliance.

Orders

54. The orders I now make are:

1. I decline, on the evidence and submissions before the Court, to make the parentage order sought by the plaintiffs.

**********

Decision last updated: 30 April 2025