The applicants are a couple. They are both citizens of the United States of America. They seek parentage orders under Surrogacy Act 2010 ("Surrogacy Act"), s18 of a child (who will be referred to as "the child" in these reasons). The child was born in June 2017. The applicants were residents of New South Wales at the time of the child's birth and at the time they filed this application on 7 August 2017. They are now resident in the United States of America. The point at issue on this application is whether Surrogacy Act, s 32, which requires that the "applicants must be resident in New South Wales at the time of the hearing of the application", now inhibits the Court from granting the application. In all other respects the applicants satisfy the requirements of the Surrogacy Act.
[2]
The Applicants, a Child and Two Jurisdictions
The applicants were both born in the United States of America. They are a same-sex couple. The sister of one of the couple offered to bear the child of the other member of the couple as an altruistic surrogate. The couple applied themselves thoroughly to the detail of compliance with the mandatory and other preconditions of the Surrogacy Act. They have complied with them all, apart from the requirements of s 32.
The couple received the unexpected, unsolicited and generous offer for the sister of one of them to become their surrogate, whilst the couple were visiting the sister in New South Wales in early 2016. The sister's husband supported her offer to become a surrogate for the applicants. The offer was of a "traditional surrogacy" without the need for intervention of specialist medical procedures. The couple made a number of trips to this State in 2016. The surrogate's brother made approximately six trips during her pregnancy, and the other partner of the couple, two trips. The child was conceived in New South Wales.
C v B [2017] NSWSC 1806 | Case summary | Zoe
When the time for the birth came, and in anticipation of the birth, the couple came to live in Australia. The Court is satisfied that the couple was resident in Australia between early June 2017 and mid-October 2017, a period of a little over four months. They were present at the birth of the child. They rented accommodation near the sister and her husband. Both the length and the features of their accommodation were consistent with residence in this State.
Upon the birth of the child in mid-June this year, the couple and their lawyers were diligent in filing the Summons in these proceedings on 9 August 2017, five weeks after the child's birth. The applicants were resident in New South Wales for another two months after that date.
After a referral of the file to a judge for consideration, the proceedings took their turn with other similar matters being dealt with in chambers. They became the subject of a chambers hearing in late November 2017. But by that time the couple had returned to New York, when on the evidence, it was at least doubtful that they remained resident in New South Wales, given their strong competing connections with the United States of America.
There is little doubt that had the fact that the couple was proposing to return to the United States and that their residency would come to an end in mid-October, been clearly flagged before the hearing in chambers, it is likely that this matter would have been prioritised over other matters to ensure that the hearing took place before mid-October. But in the event that has not occurred.
Although the couple has left this jurisdiction and may become resident here again in the future because of their family ties here, they are not currently resident within the jurisdiction. The question that now presents itself is whether a parentage order can be made for the applicants in these circumstances.
[3]
Relevant Provisions of the Surrogacy Act
The relevant provisions of the Surrogacy Act may be shortly stated. Surrogacy Act, Part 3 Division 4 "Preconditions to the Making of A Surrogacy Order" sets out a series of preconditions (ss 22-38) for the making of a parentage order. Surrogacy Act, s 32 lies within Part 3, Division 4 and provides that the "applicant or applicants must be resident in New South Wales at the time of the hearing of the application". The application of the precondition in Surrogacy Act, s 32 is qualified by Surrogacy Act, s 18(2). Section 18 provides as follows:
"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.
A Court may make a parentage order, despite not being satisfied that a precondition has been met if (a) the precondition is not a mandatory precondition to the making of the order, and (b) there are exceptional circumstances which nevertheless justify the making of the order. Surrogacy Act, s 32 is not a mandatory precondition.
As to (a), the requirement in Surrogacy Act, s 32 is framed in the nature of a precondition to the making of a parentage order. But "mandatory preconditions" are expressly distinguished from all the other preconditions identified in Surrogacy Act, Part 3 Division 4, as being signified by the inclusion in each case of a mandatory precondition of the words: "This precondition is a mandatory precondition to the making of a parentage order". But this phrase does not appear in Surrogacy Act, s 32. I agree with the reasoning of White J (as his Honour then was), who interpreted s 32 as a term that is "not expressed to be a mandatory precondition": C v B [2013] NSWSC 254 at [4] ("C v B"). The legislation creates both preconditions and mandatory preconditions to the making of percentage orders and s 32 is the former, not the latter.
As to (b), exceptional circumstances are to be construed in the context and with regard to the purpose of the legislation: S v B [2014] NSWSC 1533 ("S v B"), at [30], per White J. The purpose of the Surrogacy Act is expressed in s 3, which provides:
"This Act is to be administered by reference to the principle that, in relation to any surrogacy arrangement, the best interests of the child of the surrogacy arrangement are paramount."
Moreover, this principle is re-enforced in s 22, a mandatory precondition which requires the Court to be satisfied that "the making of the parentage order is in the best interests of the child".
In C v B (at [4]), White J stated that the Court could make a parentage order pursuant to Surrogacy Act, s 18(2)(b), if the Court were satisfied that there are exceptional circumstances that justify the making of such an order, despite the precondition in Surrogacy Act, s 32 not having been met by the plaintiffs/applicants.
In the ordinary sense of the phrase "exceptional circumstances", the 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."
In C v B, White J considered the meaning of exceptional circumstances in the context of excusing compliance with Surrogacy Act, s 32. There, White J made a parentage order (at [5] - [7]), after finding that the particular exceptional circumstances in that case involved:
1. The applicant and her husband living approximately 22 kilometres from Albury.
2. They and the birth mother (the applicant's sister) having sought treatment in Albury from a doctor specialising in reproductive medicine.
3. The child was born in a hospital in Wodonga and the parties all resided in Victoria.
4. Victoria, like New South Wales, has legislation for the making of substitute parentage orders where a child is born pursuant to appropriate surrogacy arrangements. Pursuant to s 20(1)(a) of the Status of Children Act 1974 (Vic) the "commissioning parents" of a child born under a surrogacy arrangement can only apply to a Victorian court for a substitute parentage order if the child was conceived as the result of a procedure carried out in Victoria and the commissioning parents live in Victoria at the time of making the application.
5. The plaintiffs received legal advice that, as the procedure that resulted in the child being conceived was carried out in New South Wales, they could not make an application for a substitute parentage order in Victoria.
White J concluded in C v B that the fact that the procedures that resulted in the child's being conceived took place in New South Wales, although the parties were resident in Victoria (and remained so), was an exceptional circumstance that justified the making of the parentage order despite the pre-condition in s 32 not having been met.
[4]
Application of these Principles
The Court is satisfied within the meaning of Surrogacy Act s 18(2), and in the present context, that exceptional circumstances justify the making of a parentage order in this case despite the s 32 precondition not having been met.
The Court is satisfied that the making of a parentage order here now comes down only to an issue of timing. Were the Court not to find that there were "exceptional circumstances", the mere accident of when this matter was reached in the Court's in-chambers list would determine whether a parentage order would be made, despite the applicants having organised their affairs to be resident in New South Wales for a period of four months, so that the Court could make the orders whilst they were present in the jurisdiction. This outcome is merely an accident of administration, which is in no sense the fault of the applicants.
The applicants' lack of residence at the time of the hearing is not an indicator in this case of a lack of connection with this jurisdiction. The child was conceived, born and was first nurtured in New South Wales. The applicants and the child have strong family connections with this State.
When considerable effort was invested in securing the applicants' residence in the State at the required time, the applicants' non residence at the time the orders were made, due to an administrative misalignment in the timing of the hearing and of their residence, should in my view qualify as "exceptional circumstances".
This conclusion is reinforced in this case by the mandatory consideration of the best interests of the child. It is clearly in the best interest of the child for the order to be made now, rather than at some uncertain future time when the applicants can return to Australia and temporarily re-establish their residence as they did earlier this year. When that can occur is not clear on the evidence, as the applicants have not been asked. But given the employment commitments of the couple in the United States it could reasonably be anticipated that it could not be done for many months. The medical, welfare and family security for the child of having the parentage order made in place in accordance with a regime to which the applicants have diligently accommodated themselves is a powerful factor for making the parentage order now, rather than waiting any longer. The Court will so order.
[5]
Conclusions and Orders
The Court will make a parentage order under Surrogacy Act, s 18 in accordance with the short minutes of order supplied.
[6]
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Decision last updated: 20 December 2017