Rose
[2018] FamCA 978
•23 November 2018
FAMILY COURT OF AUSTRALIA
| ROSE | [2018] FamCA 978 |
| FAMILY LAW – CHILDREN – Registration of overseas child order – Where the order is found to be an ‘overseas child order’ for the purpose of s 70G of the Family Law Act 1975 (Cth) – Where neither the applicant nor the child are ordinarily resident in or present in Australia – Where the Court finds neither the applicant nor the child are proceeding to Australia for the purpose of reg 23(1) of the Family Law Regulations 1984 (Cth) – Where the Court is not satisfied that the Agreement is not a commercial surrogacy agreement – Where commercial surrogacy is prohibited in Queensland – Where the application to register the overseas child order is dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| Carlton & Bissett and Anor (2013) 49 Fam LR 503 Lee & Hutton 50 Fam LR 322 Re: Grosvenor [2017] FamCA 366 Re: Halvard and Anor [2016] FamCA 1051 Sigley & Sigley (2018) 57 Fam LR 347 Talbot & Norman (2012) FLC 93-504 |
| APPLICANT: | Mr Rose |
| RESPONDENT: | No respondent |
| FILE NUMBER: | BRC | 8295 | of | 2018 |
| DATE DELIVERED: | 23 November 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane (in chambers) |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | By way of written submissions |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr S Page, Harrington Family Lawyers by written submission |
Order
The Application in a Case filed on 18 July 2018 seeking to register an overseas child order be dismissed.
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 Rose 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 AT BRISBANE |
FILE NUMBER: BRC 8295 of 2018
| Mr Rose |
Applicant
REASONS FOR JUDGMENT
Mr Rose is applying for the registration of an order made in the Circuit Court of B County, State of C, United States of America on 5 February 2016 (“the C order”). The C order provides for Mr Rose to have sole parental rights for a child born with the assistance of in vitro fertilisation utilising Mr Rose’s sperm, a donor ovum and a surrogate gestational carrier. The child was born in the United States of America. There is no respondent to the application. The applicant has filed written submissions and requests that the application be determined in chambers.
Brief background
Mr Rose is an Australian citizen living in City M, State of C in the United States of America. He is 49 years of age and single. Mr Rose moved to the United States of America in or about 1995.[1]
[1] All references to the applicant’s qualifications and places of residence and employment are to be redacted prior to publication.
Mr Rose grew up in Sydney, New South Wales, Australia.
Mr Rose is a single man who wished to be a father. As such, he entered into a gestational carrier agreement (“the Agreement”) with Ms E, (“the Gestational Carrier”) on 27 January 2015.
A child, X, was born in 2016.
Mr Rose is named as X’s parent on his birth certificate and since his discharge from hospital, in early 2016, the child has lived with Mr Rose. X has never resided with the Gestational Carrier or her family. The Gestational Carrier is a married woman with two school age children although she is described in the Agreement as a legally separated woman.
Currently, X is cared for by a full-time nanny during the day. Mr Rose intends for this arrangement to continue until X starts preschool. Mr Rose hopes to have another child so that X has a sibling. It appears that X is a healthy, loved and well cared for child who is not in need of protection.
Mr Rose has visited Australia with X on one occasion since his birth. Mr Rose’s parents live in New South Wales and he expresses an intention to travel to Australia on occasions in the future to visit his parents but also raises a possibility of relocating to Australia at some point in the future.
The C order
The C order was made about a month prior to the child’s birth. It names Mr Rose, the Gestational Carrier and her husband as the Petitioners. The order provides for Mr Rose to “have all the corollary rights and obligations that any genetic or legal parent would have” and ordered that he “be treated as the sole Legal Parent for all purposes under the law”. The C order ordered that the Gestational Carrier (and her husband) shall have “no parental rights or obligations” and “officially TERMINATED” any legal rights of theirs with respect to the child, “whether actual, suggested, implied, inferred or putative”. “Any legal rights of the egg donor with respect to the child, whether actual, suggested, implied, inferred or putative” are also “officially TERMINATED”.
Each party (other than the anonymous egg donor) was legally represented throughout the surrogacy process and the Agreement sets out their respective legal counsel.
Relevant statutory provisions
Section 70G of the Family Law Act 1975 (Cth) (“the Act”) is included in Part VII of the Act and provides the statutory basis for the making of regulations enabling the registration of ‘overseas child orders, other than excluded orders’.
An ‘overseas child order’ is defined in s 4 of the Act and relevantly includes an order made by a court of a ‘prescribed overseas jurisdiction’ that ‘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’.
An ‘overseas jurisdiction’ means a country, or part of a country, outside Australia (see s 4 of the Act).
Section 4 of the Act defines ‘child’ for the purposes of Part VII of the Act. It is a non-limiting definition and is stated as including an adopted child and a stillborn child and for the purposes of Subdivision E of Division 6 of that Part, as a person who is under 18 (including a person who is an adopted child). Part VII of the Act deals with children and Subdivision E of Division 6 deals with certain obligations under parenting orders. Subdivision D of Division 1 of Part VII affects the situations in which a child is a child of a person or is a child of a marriage or other relationship. There is no definition of embryo or foetus in the Act.
An ‘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. (see s 4 of the Act)
Regulation 14 of the Family Law Regulations 1984 (Cth) (“the Regulations”) provides that for the purposes of the definition of ‘prescribed overseas jurisdiction’ in s 4(1) of the Act each country or part of a country set out in column 2 of an item in Schedule 1A is declared to be a prescribed overseas jurisdiction.
Regulations 23(1) and 23(1A) of the Regulations envisage that overseas child orders will first be received by the Secretary for the Attorney General’s Department and, if certain matters are established, the order will be sent to this Court to be registered. This process has not been followed in this case but rather the order has been provided directly to this Court together with an Application in a Case seeking that the C order be registered and the matter determined in chambers.
Regulation 23(6) provides the Court with a discretion to register the order (notwithstanding noncompliance with reg 23(1)) if all other requirements of sub- reg (1) are satisfied.
Application of statutory provisions
I am required to be satisfied about the following matters before exercising the discretion to register the C order (see reg 23(1)):
(a)The order is an overseas child order; and
(b)State of C is a prescribed overseas jurisdiction; and
(c)A certified copy of an overseas child order from a prescribed overseas jurisdiction is produced; and
(d)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 is produced; and
(e)The order is not an excluded order; and
(f)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 or access to the child, or the right to spend time or communicate with the child.
If those matters are satisfied the Court may register the order which implies the Court retains an overriding discretion.
Is the C order an ‘overseas child order’?
As the C order was made prior to the child’s birth I turn to consider whether or not the order is an overseas child order when, at the time the order was made, it concerned a foetus.
The applicant relies on three cases to support the submission that the C order is an ‘overseas child order’ despite the fact of it being made prior to the birth of the child.
The first is a decision of her Honour Justice Ryan of this Court, sitting at first instance, in Carlton & Bissett.[2] That case concerned an application for a declaration that the applicant’s life partner was a parent of two year old children and for an order for equal shared parental responsibility in favour of the applicant (who was not related to the children) and his partner, in circumstances where registration of an overseas order was not an option because the overseas country was not a prescribed jurisdiction. The overseas order, made a month prior to the birth of the children, ratified a surrogacy agreement transferring all parenting rights to the applicant and the ratification occurred prior to the child’s birth. In obiter,[3] Ryan J considered that the order satisfied the requirement for there to be an ‘overseas child order’. The decision contains no argument in relation to the issue and was not a necessary finding for the purposes of the application before the Court.
[2] (2013) 49 Fam LR 503.
[3] Ibid [23].
The second decision relied upon is Re: Halvard and Anor,[4] a decision of his Honour Justice Forrest which was a case similar to the one at hand in that it concerned an application to register an order made in a prescribed overseas jurisdiction and the order was made prior to the birth of the child.
[4] [2016] FamCA 1051.
When considering whether or not the order was an ‘overseas child order’ his Honour posed two questions:
14. 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?”.
Forrest J found that the order was an ‘overseas child order’ within the meaning of s 4(1) of the Act because it had the effect of determining with whom the child, now the subject of the proceedings, should live and the persons who were to have custody of the child. His Honour stated that on the face of the overseas order there could be no doubt about the applicability of the order to the child in question, although not born at the time of the order.
The third case relied upon is Re: Grosvenor,[5] also a decision of Forrest J and also involving an application to register a pre-birth order made in a prescribed overseas jurisdiction. His Honour applied the same reasoning as he did in Re: Halvard and Anor to conclude that the order was an ‘overseas child order’.
[5] [2017] FamCA 366.
With respect to his Honour, I do not consider that the second question answers the first and, in my respectful view, the requirement to be satisfied that the ‘child’ is a child for the purposes of the definition of ‘overseas child order’ is one that has to be decided separately.
His Honour Justice Watts in Lee & Hutton[6] helpfully reviews a number of relevant authorities pertinent to this issue although not concerned with registration of an overseas child order. Watts J was considering a jurisdictional fact necessary to form the basis of a property application between a separated de facto couple i.e. whether there was a child of the de facto relationship. In that case there had been two pregnancies but no live births. Watts J commences with a consideration of the High Court authority of Brown v Brown[7] in which it was held that a court had jurisdiction to make an order for child maintenance although at the time of the original order the child was not yet born. Lindenmayer J (as he then was) considered Brown & Brown in the decision of In the Marriage of Diessel[8] and observed that “the basis upon which they did so is not clear, and none of the learned judges undertook any analysis of the section or of the Act nor approached the matter as if it involved a question of interpretation.” Lindenmayer J did not consider himself bound by the decision because it concerned an entirely different statute and in an entirely different context. His Honour was considering whether or not he was required to consider whether satisfactory arrangements had been made for children of the marriage prior to granting a divorce and found that an unborn child did not fall within the definition of ‘child’ for the purposes of that consideration. It is clear that his Honour’s conclusion was founded on the interpretation of particular statutory provisions which were held to be inconsistent with a meaning other than a ‘child’ who is born. As Lindernmayer J held in Diessel:[9]
…the expression “who have not attained the age of 18 years” in conjunction therewith suggests that “children” means living or born children, since a child's age is invariably measured from its birth not from its conception.
[6] (2013) 50 Fam LR 322.
[7] (1905) 3 CLR 373.
[8] (1980) 6 Fam LR 1, 9.
[9] Ibid 5.
A further authority considered by Watts J is In the marriage of F and F[10] where a husband applied for an injunction to prevent his wife terminating a pregnancy. Lindenmayer J rejected the notion that the jurisdiction to grant an injunction to protect the welfare of a child could include an unborn child,[11] and held inter alia:
… In my opinion, the only section of the Act in which the word "child" includes an unborn child is s.66X, which deals with the maintenance of a mother by the father of an illegitimate child during the childbirth maintenance period.[12]
And
…In my opinion, as a foetus has no legal personality it is, in law, a non-person, and it therefore cannot have an inchoate legal right any more than it can have a fully developed one.[13]
[10] (1989) FLC 92-031.
[11] Lindenmayer J considered that as the parties were married, the application for an injunction was a matrimonial cause as it arose out of the marital relationship, and s 114 of the Act would provide the jurisdictional basis to grant the injunction. His Honour nevertheless declined to do so on public policy grounds.
[12] (1989) FLC 92-031, 123, 124.
[13] Ibid 126.
In the more recent decision of Talbot & Norman[14] Murphy J agreed with the reasoning of Lindenmayer J in holding that the Court lacked jurisdiction to enjoin a woman from undergoing a termination to protect the welfare of a child because the term ‘child’ means a child once born. Murphy J noted that his conclusion was consistent with common law and cited a number of authorities.[15]
[14] (2012) FLC 93-504.
[15] Barrett v Coroner's Court of South Australia [2010] SASCFC 70, applying Re Iby (2005) 63 NSWLR 278. Special leave to appeal was refused by the High Court in Barrett (Barrett v Coroner's Court of South Australia [2011] HCATrans 166). As the parties were not married there could be no alternative basis upon which to found jurisdiction.
Watts J suggests[16] that the apparent tension between the pronouncement of the law by the High Court in Brown on the one hand and Family Court first instance decisions in Diessel, F and F and Talbot & Norman is more illusory than real (my words) because in Brown, “any order made for child maintenance in relation to the child that was in utero was an order that only had effect once the child was born. Looked at in that way, their Honours’ approach would be consistent with the common law notion in a number of areas of the law that a foetus or embryo can be treated as a person if there is a benefit that that person obtains once born.” By way of analogy his Honour then considers the rights of the unborn child (upon birth) to receive damages for personal injury caused by negligence and the rights of an unborn child (upon birth) to inherit.[17] Watts J concludes that where the child is to receive a benefit upon birth the law creates a legal fiction that recognises the unborn child as a person with rights. His Honour also considers that the injunctions sought in F and F and Talbot & Norman might have been granted if “the ability to be born was a benefit to the foetus.” [18] His Honour acknowledges that “in criminal and coronial law, the “born alive” rule holds that “for a foetus to achieve legal personhood, the infant must have been born alive”[19] but concludes that the term child can have different meanings in different parts of the Act. Ultimately, his Honour concludes that, for the purposes of s 90SB(b) of the Act, the reference to a child does not include an unborn child.[20]
[16] See Lee & Hutton supra, [145].
[17] Ibid [146], [147].
[18] Ibid [151].
[19] Ibid [153] citations omitted.
[20] Ibid [160].
The effect of the C order is to confer sole parenting and parentage rights upon the applicant. If such an application were made under a surrogacy arrangement entered into in Queensland (where this application for registration has been filed) the applicable law would be found in either the Surrogacy Act 2010 (Qld) or under the Family Law Act1975 (Cth). The Surrogacy Act does not permit an order to be made unless the child has been living with the applicant for a minimum of twenty-eight days and in my view, the jurisdiction to make such an order under the Family Law Act also requires the child to be a born child.
However, there is distinction to be drawn between the present case and the cases and legislation discussed above. The present case is not concerned with the jurisdiction to make an order. The order has already been made. The application comes before me when the child has been born. There can be no doubt that the C order concerns the child in question, the child is under the age of eighteen years and it determines the person with whom the child is to live.
Accordingly, I have come to the conclusion that the term ‘overseas child order’ applies to the C order.
Is the State of C a prescribed overseas jurisdiction?
The State of C is a prescribed overseas jurisdiction as set out in column 2 of an item in Schedule 1A to the Regulations.
Is a certified copy of the order produced?
The C order is produced and certified as a true and correct copy of the order entered in February 2016 in No …-M, truly taken and copied from the record of proceedings in the Circuit Court for B County, State of C by the Clerk of that court.
Is the C order enforceable?
An ‘Enforceability Certificate’ is produced reflecting an order made by a judge in February 2016 stating that the C order is, at the date of this certificate, enforceable in the State of C.
Is the C order an ‘excluded order’?
The C order does not appear to be an interim order and the Gestational Carrier and her husband were both parties to the petition resulting in the order. Accordingly, it is not an excluded order.
Is the applicant and/or the child ‘proceeding to’ Australia?
The next matter to consider is whether or not there are reasonable grounds for believing that the child or the parent or a person having the right of custody is ‘ordinarily resident in, present in or proceeding to Australia.’ (see reg 23(1)).
Neither the child nor Mr Rose are ordinarily resident in or present in Australia so the question arises whether the evidence supports a finding that Mr Rose or the child are ‘proceeding to’ Australia.
Forrest J has considered this term in three recent decisions[21] and held that in the context of reg 23(1), ‘proceeding to’ must be one of ‘coming to’ or ‘travelling to’ Australia whether for a visit or to remain here. In each of the particular factual circumstances of those three decisions, his Honour was satisfied that the applicant/s were proceeding to Australia for the purposes of the Regulations.
[21] Re: Halvard and Anor [2016] FamCA 1051; Re: Grosvenor [2017] FamCA 366; Sigley& Sigley (2018) 57 Fam LR 347.
In Re: Halvard and Anor[22] Forrest J found:
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.
[22] Supra [28].
In Re: Grosvenor[23] Forrest J found:
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.
[23] Supra [26].
In Sigley & Sigley[24] Forrest J found:
The factual circumstances set out in the applicants’ affidavits, particularly their expressed intention to return to Australia permanently, their Australian citizenship, years of being ordinarily resident in Victoria prior to relocating to the US, the residence of members of their family in Australia, their temporary work visas in the United States and enrolment of their children in a Melbourne school for the commencement of kindergarten 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 reg 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 and whether that person be currently on their way here or simply planning to come here sometime soon.[24] Supra [24], [25].
In the present case, it is apparent that Mr Rose has a connection to Australia although he has been living in the US since in or about 1995. He grew up in Sydney and his parents still live there. I accept that he is looking forward to showing the child where he grew up and attended school and university. Mr Rose intends at some unspecified times in the future to visit Australia with the child and there is a possibility that he and the child may live in Sydney at some unspecified time in the future.
Although the factual circumstances in the present case bear some similarity to the circumstances in the three cases considered by Forrest J, I am not satisfied that Mr Rose and/or the child are ‘proceeding to’ Australia within the meaning of the Regulations. Whether the term ‘proceeding to’ is further defined by other terms such as ‘coming to’ or ‘travelling to’, in my view, the term requires some evidence of immediacy or action rather than mere intention.
Overriding discretion
In the event that I am wrong in the correct interpretation to be given to that term or its application, I would nevertheless decline to exercise my discretion in favour of registration of the C order because I am not satisfied that the Agreement is not a commercial surrogacy. This is of significance because in Queensland commercial surrogacy arrangements are prohibited, attracting penalties of up to three years imprisonment.[25] To register an order which recognises a commercial surrogacy would be contrary to public policy because it would give curial approval to something that is prohibited by law.
[25] Surrogacy Act 2010 (QLD), s 56; commercial surrogacy is also prohibited in NSW pursuant to the Surrogacy Act 2010 (NSW), s 8.
A commercial surrogacy is defined in the Surrogacy Act 2010 (Qld) as:
A surrogacy arrangement is a
"commercial surrogacy arrangement" if a person receives a payment, reward or other material benefit or advantage (other than the reimbursement of the birth mother’s surrogacy costs) for the person or another person—
(a) agreeing to enter into or entering into the surrogacy arrangement; or
(b) permanently relinquishing to 1 or more intended parents the custody and guardianship of a child born as a result of the surrogacy arrangement; or
(c) consenting to the making of a parentage order for a child born as a result of the surrogacy arrangement.
A birth mother’s surrogacy costs are defined as:
(1) A
"birth mother’s surrogacy costs" are the birth mother’s reasonable costs associated with any of the following matters—
(a) becoming or trying to become pregnant;
(b) a pregnancy or a birth;
(c) the birth mother and the birth mother’s spouse (if any) being a party to a surrogacy arrangement or proceedings in relation to a parentage order.
(2) Without limiting subsection (1), the following amounts are a birth mother’s surrogacy costs—
(a) a reasonable medical cost for the birth mother associated with any of the matters mentioned in subsection (1);
Example: a cost incurred before conception if the birth mother consults a medical practitioner to find out if she is capable of carrying a pregnancy before undergoing a fertilisation procedure
(b) a reasonable cost, including a reasonable medical cost, for a child born as a result of the surrogacy arrangement;
(c) a premium payable for health, disability or life insurance that would not have been obtained by the birth mother if the surrogacy arrangement had not been entered into;
(d) a reasonable cost of counselling associated with any of the matters mentioned in subsection (1), including—
(i) the cost of counselling obtained by the birth mother or the birth mother’s spouse (if any) before or after entering into the surrogacy arrangement; or
(ii) the cost relating to the preparation of a surrogacy guidance report under section 32;
(e) a reasonable legal cost for the birth mother and the birth mother’s spouse (if any) relating to the surrogacy arrangement and the transfer of parentage;
(f) the value of the birth mother’s actual lost earnings because of leave taken—
(i) for a period of not more than 2 months during which a birth happened or was expected to happen; or
(ii) for any other period during the pregnancy when the birth mother was unable to work on medical grounds;
(g) another reasonable cost associated with the surrogacy arrangement or the making of the order transferring parentage.
Example:
• travel and accommodation costs for a birth mother who lives interstate and travels to Queensland to undertake a fertility treatment, to consult with an obstetrician or to give birth
• travel and accommodation costs associated with a birth mother’s attendance at a court hearing about an application for a parentage order if the birth mother does not live near the court
(3) In this section—
"legal cost" includes fees for obtaining legal advice and legal representation, court fees, and registry fees associated with registration of a birth and transfer of parentage.
"medical cost" means a medical cost to the extent that it is not recoverable under Medicare or any health insurance or other scheme.
The submissions relied upon by the applicant leave open the prospect that the surrogacy agreement is of a commercial nature. Indeed the submissions rely on authorities where registration of an overseas child order has been made notwithstanding the commercial nature of the agreement.[26]
[26]Re: Grosvenor (supra); Sigley & Sigley (supra).
The Agreement itself has as one of the headings ‘Reimbursements for Expenses and No Compensation to Gestational Carrier’. However, that part of the Agreement provides that as the Gestational Carrier has no parental rights, any expenses or reimbursements to her do not constitute payment for transferring or surrendering parental rights. I do not regard the heading or the limitation as determinative of the broader discretion.
The Agreement goes on to provide for the payment of:
(a)Reasonable medical, legal, and ancillary costs and expenses;
(b)Fertility treatment costs and expenses not covered by insurance;
(c)Capped legal expenses for the negotiation of the agreement, ongoing legal advice and court filings to establish parental rights;
(d)Ancillary expenses for food and meals, housing expenses such as rent or mortgage expenses and utilities. The ‘base amount’ is set at USD26,000 and receipts are not required; and
(e)Actual lost wages.
The Agreement imposes a duty of confidentiality on the parties as to its financial terms.
It seems to me that the payment of rent, mortgage expenses and utility expenses fall into the category of a ‘payment, reward or other material benefit or advantage’ that is directly related to the entering into the Agreement. Such payments do not fall within the definition of a birth mother’s surrogacy costs. The explanatory notes to the Queensland legislation make it clear that the intention of the legislature was to bring Queensland into line with other States and Territories by decriminalising altruistic surrogacy arrangements while maintaining a prohibition on commercial surrogacy. The application to register an overseas child order that may arise out of a prohibited commercial surrogacy arrangement is contrary to the clear intention of parliament. There are no competing public policy considerations in this case such as the child being in need of protection.
Accordingly, I decline to exercise my discretion to register the order.
conclusion
The application to register the C order is dismissed. There are a number of factors that are pre-requisites to registration and even when the pre-requisites are met the Court retains a discretion about whether or not to register the order. In this case, one of the pre-requisites is not met, namely, neither the child nor the applicant are ‘proceeding to’ Australia. Secondly, I am not satisfied that the agreement between the applicant and the Gestational Carrier is not a commercial surrogacy and as commercial surrogacy arrangements are prohibited in Queensland I am not prepared to exercise my discretion to register the order.
anonymity
The applicant states that he has no difficulty with an order protecting his and the child’s identity including an order preventing a person from searching the court file without prior leave of the Court. As the Act already prevents a search of court files without permission and a proper basis,[27] I see no need to make an order to that effect.
[27] Family Law Rules 2004, r 24.13.
The applicant also requests that care be taken when anonymising the judgment. All judgments of this Court are published but prior to publication they are anonymised to protect the identity of the parties and children. I have nevertheless included a particular notation to ensure that the paragraph describing the applicant’s personal details is redacted in the published version.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered 23 November 2018.
Associate:
Date: 23.11.2018
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