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S v B; O v D

S v B; O v D

Case [2014] NSWSC 1533 3 November 2014

Parentage Order

Surrogacy

Statutory Requirements

Family Law

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Supreme Court

New South Wales

Medium Neutral Citation: S v B; O v D [2014] NSWSC 1533
Hearing dates: In chambers
Decision date: 03 November 2014
Jurisdiction: Equity Division - Adoption List
Before: White J
Decision:
Refer to para [35] of judgment.

Catchwords: FAMILY LAW AND CHILD WELFARE - application for parentage order under Surrogacy Act 2010 (NSW) s 14 - summonses initially sought transfer of parentage only from surrogate mother to intended mother - where birth certificate recorded surrogate mother as child's mother and intended father as child's father - necessity for parentage order transferring parentage from both surrogate mother and her husband to intended mother and father - birth of child must be registered in accordance with statutory requirements - where intended father's registration as father on birth certificate before parentage order made in contravention of statutory requirements - registration of surrogate mother's husband as child's father on birth certificate precondition to making parentage order - whether court satisfied that "exceptional circumstances" justify making parentage order despite precondition not being met - Surrogacy Act 2010 (NSW) s 18 - parentage order made
Legislation Cited: Surrogacy Act 2010 (NSW)
Births, Deaths and Marriages Registration Act 1996 (Vic)
Births, Deaths and Marriages Registration Act 1995 (NSW)
Family Law Act 1975 (Cth)
Status of Children Act 1996 (NSW)
Status of Children Act 1974 (Vic)
Cases Cited: Re A and B [2000] NSWSC 640; (2000) 26 Fam LR 317
R v Kelly (Edward) [2000] QB 198
Re Application of JSC [2013] NSWSC 440
Category: Principal judgment
Parties: SS & Anor v RB & Anor;
DMO & Anor v RD & Anor
Representation: Counsel: n/a
Solicitors:
Andrea Wilson & Associates (Plaintiffs)

File Number(s): 026/2014; 025/2014

Judgment

HIS HONOUR: Both these proceedings concern applications for parentage orders under the Surrogacy Act 2010 (NSW). They raise similar issues. In each case the summons, as originally filed, sought an order transferring the parentage of the child from the child's birth mother (a surrogate mother) to the child's intended mother. In neither case was a parentage order initially sought in relation to the child's father. In both cases the child's birth certificate recorded the surrogate mother as the child's mother and the intended father as the child's father.

One of the children was born in Victoria. Accordingly the Births, Deaths and Marriages Registration Act1996 (Vic) applied to the parties' obligations to register the child's birth. In both cases the intended parents are resident in New South Wales. The Surrogacy Act2010 (NSW) applies to both applications (s 32).

I gave an interim judgment in both matters stating that whilst I was satisfied it was in the best interests of the child that an appropriate parentage order be made, I was not satisfied that the appropriate order was that sought in the summons.

In one case the ovum was fertilised by a sperm of the intended father. In the other it was not. In both cases, pursuant to s 60H of the Family Law Act

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 S v B; O v D

Details

AGLC: S v B; O v D [2014] NSWSC 1533
Case: [2014] NSWSC 1533
Decision Date: 03 November 2014

CaseChat Overview and Summary

In the case of S v B; O v D, the applicants sought a parentage order under section 14 of the Surrogacy Act 2010 (NSW). The applicants, intended parents, were seeking to transfer parentage of a child born through surrogacy from the surrogate mother and her husband to the intended parents. The surrogate mother and her husband had been listed on the birth certificate as the child's mother and father respectively, while the intended parents were listed as the intended mother and father. The applicants argued that the birth certificate needed to be corrected to reflect the intended parents' status as the child's legal parents.

The primary legal issue before the court was whether a parentage order could be made in circumstances where the statutory preconditions for such an order had not been satisfied. Under section 18 of the Surrogacy Act, a parentage order cannot be made unless the child's birth has been registered in accordance with the statutory requirements, and the intended father's registration as the father on the birth certificate occurred before the parentage order was made, which was not the case in this instance. The court needed to determine if "exceptional circumstances" justified making the parentage order despite the statutory precondition not being met.

The court found that despite the intended father's registration as father on the birth certificate occurring after the parentage order was sought, exceptional circumstances did exist to justify making the parentage order. The court considered the best interests of the child, the intentions of the parties, and the fact that the surrogate mother's husband had been registered as the child's father on the birth certificate. The court was satisfied that the registration of the surrogate mother's husband as the child's father on the birth certificate was a precondition to making the parentage order, but the exceptional circumstances in this case warranted an order transferring parentage from the surrogate mother and her husband to the intended parents. The court made the parentage order, reflecting the intended parents' status as the child's legal parents.

Orders