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Relationship plans Division 3
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(2) Without limiting the matters that a relationship plan may deal1
with, the plan may set out details of —2
(a) any time the child is to spend with the surrogate or3
another person; and4
(b) any communication the child is to have with the5
surrogate or another person; and6
(c) the information that any of the parties to the plan is to7
provide to the other parties or another person.8
(3) In dealing with a matter, a relationship plan must —9
(a) adequately balance the rights and responsibilities of the10
parties to the plan; and11
(b) promote the long-term wellbeing and best interests of12
the child; and13
(c) be reasonable in the circumstances.14
114. Variation of relationship plan15
(1) The parties to a relationship plan may vary the plan with the16
agreement of all the parties.17
(2) A variation of the relationship plan may be to add a new party18
to, or remove a party from, the plan.19
(3) A party to the relationship plan may apply to the Family Court20
for approval to vary the plan if —21
(a) all the parties to the plan cannot agree to the variation;22
and23
(b) the child the subject of the plan is under 18 years of age.24
(4) The Family Court may approve the variation of the relationship25
plan as specified in the application if satisfied that —26
(a) the variation is appropriate because of a change of27
circumstances since the plan was agreed; and28
(b) the varied plan would be consistent with section 113.29
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115. Family Court’s powers to deal with breach of relationship1
plan2
(1) If a party (the first party) to a relationship plan claims that3
another party has breached the plan, the first party may apply to4
the Family Court for relief in relation to the breach.5
(2) If the Family Court is satisfied that a breach of the relationship6
plan has happened or is likely to happen, the court may, on an7
application under subsection (1) —8
(a) order the parties to the relationship plan to participate in9
a mediation process; or10
(b) as it thinks fit, exercise its powers under the Family11
Court Act 1997 to enforce the relationship plan as if the12
plan were an order made by the Family Court under that13
Act.14
(3) Without limiting subsection (2), the Family Court may deal with15
a breach of a relationship plan as if the person who breached the16
plan contravened an order made by the court under the Family17
Court Act 1997 or were in contempt of the court.18
Division 4 — Transferring child’s parentage to intended19
parents20
Subdivision 1 — Preliminary21
116. When this Division applies and what it is about22
(1) This Division applies if a surrogate gives birth to a child under a23
surrogacy arrangement.24
(2) This Division —25
(a) allows the intended parents of the child to apply to the26
Family Court to make an order (a parentage order) to27
transfer the parentage of the child to them; and28
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Transferring child’s parentage to intended parents Division 4
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(b) provides for the Family Court to make the parentage1
order for the child if the requirements for making the2
order are met.3
(3) In this Division, in a provision about a parentage order or an4
application for a parentage order, a reference to the surrogacy5
arrangement is a reference to the surrogacy arrangement under6
which the child the subject of the application was born.7
117. Child’s best interests paramount8
(1) In making a decision about a parentage order for the child, the9
Family Court must consider the best interests of the child as10
paramount.11
(2) For the purposes of this Division, it is presumed to be in the best12
interests of the child for the intended parents to be the child’s13
parents, unless there is evidence to the contrary.14
118. References to intended parents if only 1 intended parent15
applies for parentage order16
(1) If only 1 intended parent applies for a parentage order for the17
child, a reference in this Division to the intended parents of the18
child is taken to be a reference to that intended parent.19
(2) If 2 intended parents of the child apply for a parentage order for20
the child and 1 of the intended parents dies before the Family21
Court decides the application, a reference in this Division to the22
intended parents of the child is taken to be a reference to the23
living intended parent.24
Subdivision 2 — Orders for transfer of child’s parentage generally25
119. Applying for parentage order26
(1) The intended parents of the child may apply to the Family Court27
for a parentage order for the child.28
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(2) The application —1
(a) cannot be lodged during the period of 28 days after the2
day on which the child is born; and3
(b) cannot be lodged later than 6 months after the day on4
which the child is born, except with the leave of the5
court.6
(3) The Family Court may give leave under subsection (2)(b) only7
if satisfied that exceptional circumstances justify the leave being8
given.9
(4) To the extent possible, the following documents must be lodged10
with the application —11
(a) a certified copy of the child’s birth certificate;12
(b) a copy of the surrogacy arrangement under which the13
child was born;14
(c) a copy of the relationship plan relating to the child.15
120. Family Court may make parentage order16
(1) The Family Court may, on the application of the intended17
parents of the child under section 119, make a parentage order18
for the child if satisfied that —19
(a) it is in the best interests of the child to make the order;20
and21
(b) the surrogacy arrangement under which the child was22
born is a valid arrangement; and23
(c) the intended parents live in the State and, when the order24
is to be made, will have lived in the State for at least25
12 months; and26
(d) the surrogate freely consents to the parentage order27
being made; and28
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(e) the intended parents had, when the application was1
lodged with the Family Court, and will have, when the2
court makes the parentage order, responsibility for the3
day-to-day care, wellbeing and development of the4
child; and5
(f) the surrogate and the intended parents have agreed in6
writing to a relationship plan for the child.7
Note for this subsection:8
For the purposes of paragraph (b), see section 108 for the9
requirements that must be satisfied for a surrogacy arrangement to be10
valid.11
(2) A requirement for making a parentage order for the child under12
subsection (1) does not apply if the Family Court dispenses with13
the requirement under Subdivision 4.14
(3) For the purposes of subsection (1)(c), it does not matter whether15
or not the intended parents were present in the State for all of16
the 12 months.17
121. Name of child18
(1) A parentage order for the child must include an order stating the19
name by which the child is to be known.20
(2) Before making an order about the child’s name, the Family21
Court must consider —22
(a) the principle that a child’s first name should not be23
changed except in exceptional circumstances; and24
(b) anything relevant in the relationship plan relating to the25
child.26
(3) An order under subsection (1) does not prevent the child’s name27
being changed later under a law of the State or the28
Commonwealth.29
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122. Ancillary orders1
(1) If the Family Court makes a parentage order for the child, the2
court may make any other order it considers appropriate —3
(a) in the interests of justice; or4
(b) for the wellbeing, and in the best interests, of the child.5
(2) Without limiting subsection (1), if the child was born outside6
Australia, the Family Court may order that the child’s birth be7
registered in the register of births, deaths and marriages if the8
court is satisfed that —9
(a) registration of the child’s birth under an applicable law10
does not include the following —11
(i) the full name by which the child is known before12
the parentage order becomes effective;13
(ii) the date and place of birth of the child;14
(iii) the name and address of the surrogate;15
or16
(b) the child’s birth was not registered under an applicable17
law.18
(3) In subsection (2) —19
applicable law, in relation to the child’s birth, means a law of20
the country in which the child was born that provides for the21
registration of births.22
123. Effect of parentage order23
(1) For the purposes of the laws of the State, the effect of a24
parentage order for the child is that —25
(a) the relationship between the child and each person26
named in the parentage order as a parent of the child27
becomes a relationship of child and parent; and28
(b) the relationship between the child and the surrogate29
stops being a relationship of child and parent; and30
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(c) the relationships of other persons to the child are to be1
determined in accordance with paragraphs (a) and (b).2
(2) Subsection (1)(a) also applies to a person named in the3
parentage order as a parent of the child who died before the4
parentage order was made.5
(3) The appointment of a person as the guardian of the child made6
under a deed or will stops having effect when a parentage order7
for the child is made.8
Note for this section:9
See section 139(3) in relation to the effect of the discharge of a10
parentage order for the child for the purposes of applying a law of the11
State relating to sexual offences if the relationship between persons is12
relevant.13
124. Finality of parentage order14
A parentage order cannot be appealed against, reviewed, called15
in question or affected by a court in any way except —16
(a) in proceedings on an application for discharge of the17
order under Subdivision 5; or18
(b) under the Family Court Act 1997 section 211(3).19
Subdivision 3 — Orders for transfer of child’s parentage in20
particular circumstances21
125. Separation of intended parents22
(1) This section applies if the child’s intended parents separate23
before a parentage order for the child is made.24
(2) If an application for a parentage order for the child has not been25
made under section 119, either of the child’s intended parents,26
or both of them, may apply under that section.27
(3) If only 1 intended parent makes an application, that intended28
parent must serve a copy of the application on the other29
intended parent (the non-applicant intended parent) within30
14 days after making the application.31
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(4) A non-applicant intended parent served a copy of an application1
under subsection (3) may, within 21 days after being served,2
apply to the Family Court to be joined as a party to proceedings3
on the application.4
(5) If the intended parents make the application jointly, either5
before or after they separate, 1 intended parent may withdraw6
from the application by —7
(a) filing notice of the withdrawal in the Family Court; and8
(b) serving a copy of the notice on the other intended parent9
within 14 days after filing the notice.10
(6) The Family Court may make a parentage order under11
section 120 transferring the parentage of the child solely to12
1 intended parent (the applicant parent) if —13
(a) the other intended parent freely consents to an order14
transferring parentage of the child solely to the applicant15
parent; or16
(b) the court, being satisfied that it is in the best interests of17
the child, dispenses with the requirement under18
paragraph (a) for the other intended parent’s consent.19
126. Death of intended parent before application for parentage20
order21
(1) This section applies if —22
(a) an intended parent (the deceased person) of the child23
dies before an application for a parentage order for the24
child is made under section 119; or25
(b) both of the following apply —26
(i) the surviving partner of a deceased person is an27
intended parent under a surrogacy arrangement28
entered into after the person’s death;29
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(ii) the child born under the arrangement was1
conceived as a result of an ART procedure that2
used the reproductive material or an embryo of3
the deceased person (as those terms are defined4
in section 73(1)).5
(2) The living intended parent of the child may apply under6
section 119 for a parentage order to transfer the parentage of the7
child jointly to the living intended parent and the deceased8
person.9
(3) The Family Court may, with the consent of the living intended10
parent of the child, make a parentage order under section 12011
transferring the parentage of the child jointly to the living and12
deceased intended parents.13
127. Death of intended parent after application for parentage14
order15
(1) This section applies if an intended parent of the child dies —16
(a) after an application for a parentage order for the child is17
made under section 119; and18
(b) before the application is decided.19
(2) The Family Court may —20
(a) continue to hear and decide the application; and21
(b) with the consent of the living intended parent of the22
child, make a parentage order under section 12023
transferring the parentage of the child jointly to the24
living and deceased intended parents.25
128. Multiple births26
(1) This section applies if —27
(a) an application for a parentage order for the child is made28
under section 119; and29
(b) the child has a living sibling (a living birth sibling) born30
of the same pregnancy as the child.31
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(2) The Family Court must not make a parentage order for the child1
unless it also makes a parentage order about each living birth2
sibling of the child.3
(3) Subsection (2) does not apply if the Family Court is satisfied4
there is an exceptional reason why a parentage order for the5
living birth sibling should not be made.6
Subdivision 4 — Dispensing with requirements for making7
parentage orders8
129. Application of Subdivision9
This Subdivision provides for the circumstances in which the10
Family Court, in deciding whether to make a parentage order for11
the child under section 120, may dispense with 1 or more of the12
requirements of that section for making the order.13
130. Requirements to be met by surrogate14
(1) This section applies if, in relation to an application for a15
parentage order for the child —16
(a) the surrogate is deceased or incapacitated; or17
(b) the intended parents have been unable to contact the18
surrogate despite making reasonable efforts to do so; or19
(c) the embryo from which the child was born was created20
without using reproductive material from the surrogate21
and at least 1 intended parent is a contributing parent of22
the child.23
(2) The Family Court may, if satisfied that it is in the best interests24
of the child, dispense with any or all of the following25
requirements —26
(a) the requirement in section 120(1)(d) for the surrogate to27
consent to the making of the parentage order;28
(b) the requirement for the surrogate to have received29
counselling or obtained legal advice described in30
section 108(1)(e), to the extent it is a requirement in31
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section 120(1)(b) for the surrogacy arrangement to be1
valid;2
(c) the requirement in section 120(1)(f) for the surrogate to3
have agreed to a relationship plan for the child.4
131. Requirement for surrogacy arrangement to be valid5
The Family Court may dispense with 1 or more of the6
requirements in section 108(1) that must be satisfied for the7
surrogacy arrangement to be valid as required by8
section 120(1)(b), but only if the court is satisfied that —9
(a) having considered the circumstances of the surrogate,10
not making the parentage order would be contrary to the11
child’s best interests and would significantly12
disadvantage the child; and13
(b) it is reasonable in all the circumstances to make the14
parentage order.15
132. Requirement for intended parents to have responsibility for16
child’s day-to-day care17
(1) The Family Court may dispense with the requirement in18
section 120(1)(e) for an intended parent to have had19
responsibility for the day-to-day care, wellbeing and20
development of the child at either or both of the following21
times —22
(a) the time that the intended parents’ application for a23
parentage order was lodged;24
(b) the time that the court proposes to make a parentage25
order for the child.26
(2) However, the Family Court may only dispense with the27
requirement under subsection (1) if satisfied that —28
(a) it is in the best interests of the child to do so; and29