Re L; Application for Parentage Order [2022] NSWSC 1155

Supreme Court New South Wales

Medium Neutral Citation: Re L; Application for Parentage Order [2022] NSWSC 1155 Hearing dates: 26 August 2022 Date of orders: 26 August 2022 Decision date: 26 August 2022 Jurisdiction: Equity - Adoptions List Before: Parker J Decision: See [28] Catchwords: FAMILY LAW AND CHILD WELFARE – surrogacy – application for parentage order – non-mandatory precondition for affected parties to undertake counselling before entering surrogacy agreement – birth parents and intended parents received counselling after entering surrogacy agreement – exceptional circumstances justifying making parentage order despite precondition not being satisfied – applicants not advised of requirement to receive counselling before entering surrogacy agreement – birth parents support parentage application – best interests of the child – exceptional circumstances satisfied Legislation Cited: Surrogacy Act 2010, ss 18, 35 Cases Cited: C v B [2013] NSWSC 254 S v B; O v D [2014] NSWSC 1533 Surrogacy Application By a Couple From the United States of America [2017] NSWSC 1806 Category: Principal judgment Parties: R (First Applicant) J (Second Applicant) Representation: In person R (First Applicant) J (Second Applicant) File Number(s): 2022/147872 Publication restriction: Nil

Judgment – EX TEMPORE (Revised from transcript; issued 30 August 2022) 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 female child who is about six months old. I will refer to her in this judgment as "L". 2. L was born pursuant to a surrogacy agreement between her birth parents, to whom I will refer as "A" and "M", and her intended parents, who are the applicants in these proceedings, and to whom I will refer as "R" and "J". A is the sister of R. L has been living with R and J since she was discharged from hospital. A and M, as birth parents, fully support the present application. A has appeared (and as it happened has given evidence) at today's hearing. 3. The Surrogacy Act imposes various conditions which must be satisfied before the Court can make a parentage order of the type that is sought. These include requirements of counselling both for the birth parents and the intended parents. 4. All of the counselling required by the Act has taken place in the present case. A problem has however arisen because s 35(1) of the Act requires that counselling be undertaken both by the birth parents and the intended parents before the surrogacy agreement is entered into. That timing requirement has not been satisfied. 5. The surrogacy agreement was signed by the parties on 17 February last year. The birth parents underwent counselling on 19 February and the relevant counselling session for the intended parents was not held until 2 March. 6. The applicants in the present case told me that the Surrogacy Agreement had been prepared and, as I understood it, the application had been put together with the assistance of, a legal advisor, but the legal advisor has not represented the applicants for the purposes of the proceedings. They have been self-represented. 7. When the difficulty with s 35(1) came to my attention in Chambers, I advised the applicants of the problem and suggested that they might wish to obtain professional assistance before proceeding to determination of the application. They did not take this up and today's hearing was then scheduled. At the beginning of the hearing, I gave the applicants a further opportunity to obtain assistance with having the application determined but again they declined. 8. R, J and A gave some supplementary evidence at the hearing to explain the circumstances in which the counselling sessions took place. On behalf of the applicants, R then presented some further submissions. 9. Section 18 of the Act deals with the situation where preconditions specified by the Act are not complied with. Section 18 provides: (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. 1. In accordance with subsection (2) the Court may make a parentage order despite non-compliance with a precondition, if the precondition is not a "mandatory precondition". In C v B [2013] NSWSC 254, White J (as his Honour then was) considered the meaning of the term "mandatory precondition" in this context. His Honour concluded (at [4]) that a "mandatory precondition" is a precondition which is expressly stated as being mandatory in the Act. 2. This view was followed by Slattery J in Surrogacy Application by a Couple from the United States of America [2017] NSWSC 1806 at [11]. I too will apply White J's approach. 3. Section 35(1) is not stated to be a mandatory precondition and the Court may therefore dispense with it if satisfied that there are "exceptional circumstances" which justify doing so. The question comes down to whether that test is satisfied. 4. At this point I should say something more detailed about the facts so far as counselling is concerned in the present case. The surrogacy agreement which is the subject of this application is in fact the second surrogacy arrangement which R and J have entered into in their attempts to have a child. In 2020, R and J entered into surrogacy agreement with a different surrogate. In the course of doing so, they J underwent all of the counselling required for them as intended parents. So did that surrogate. IVF transfers were undertaken but unfortunately they were unsuccessful and eventually the surrogate decided that she could no longer proceed with the agreement. 5. It was against this background that the present surrogacy agreement was entered into with A and M. A in fact undertook some counselling with IVF Australia before signing the agreement as part of her preliminary contact with that organisation. But it is not suggested that that counselling complied with all of the requirements of the Act. 6. As I have mentioned, R and J had the assistance of a legal advisor. It was apparently the legal advisor who was responsible for drafting the surrogacy agreement. However, no advice was given to R and J at any stage about the timing requirements for counselling in s 35(1). The parties to the agreement signed on 17 February when they were asked to do so by the legal advisor, without any understanding that they should have had the necessary counselling first. 7. Early in February, that is, before signing the agreement, J made contact with the counsellor. The appointments for counselling were booked at that time but the counsellor does not appear to have understood that the signing of the agreement was imminent. 8. Originally the birth parents' counselling was scheduled for 16 February, which was the day before the agreement was in fact executed. But owing to M's other commitments, it was put back to 19 February. As I have mentioned, the appointment between R and J and the counsellor did not take place until 2 March. 9. I accept unhesitatingly the evidence of R, J and A that none of them was aware of the timing requirement in s 35(1). They have all acted at all times in complete good faith. In particular, I accept that neither the legal advisor who was assisting R and J nor the counsellor mentioned the requirement to them. In saying this I do not necessarily intend any criticism of either the legal advisor or the counsellor. It is unnecessary for the purposes of this application to go into the rights and wrongs of what happened. 10. Following the completion of the counselling, A underwent IVF procedures on 7 June. L was born, following a healthy and normal pregnancy, on 3 February this year. 11. The question for me is whether the circumstances I have outlined are "exceptional circumstances" which justify the Court in dispensing with the timing requirement of s 35(1). The phrase "exceptional circumstances" is used in many statutes. Its meaning must of course be determined in each case according to the statutory context. 12. The application of the phrase as it appears in s 18(2)(b) of the Act was considered by White J and Slattery J in the decisions to which I have referred. It was also considered by White J in S v B; O v D [2014] NSWSC 1533 at [30]-[31]. 13. It has been stated in many contexts that for circumstances to be "exceptional" they need not be unique or unprecedented or especially rare. The term "exceptional" is sometimes used as a synonym for "special". The same point has been made in the context of s 18 in the decisions to which I have referred. In those decisions both White J and Slattery J made parentage orders, even though s 32, which is another precondition in the Act, had not been complied with. Section 32 requires that the applicants for a parentage order must be residents in New South Wales at the time of the hearing of the application. The timing requirement in s 35(1) is of course a different one and each case turns on its own facts. 14. 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. 15. 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. 16. In the present case, I think there are two features of particular importance. The first is that it is only the timing requirement of s 35(1) which has not been complied with. Of course, the requirement that counselling take place before the agreement is entered into is quite understandable in the interests of the parties to that agreement. Clearly, if following counselling one or other party wishes to pull out of the proposed surrogacy arrangement, it is better that that should happen before any agreement is signed. But in the present case the counselling was all completed before A even became pregnant with L. 17. A related point is that if the problem had been appreciated at the time, it could have been dealt with, if necessary, by rescinding the 17 February surrogacy agreement and entering into a fresh agreement which post-dated the counselling. But if the Court now declines to dispense with the requirement of s 35(1), nothing can be done because the agreement has been completed. I add, of course, that there is no suggestion that any party to the agreement in this case repents in the slightest of having entered into that agreement and carried it to fruition. 18. The second point is that in the context of this Act, the best interests of the child are always the paramount consideration. 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. 19. For these reasons I am satisfied that the parties have complied substantially with the requirements of the Act and that I should dispense with the failure to comply with the timing requirements of s 35(1). I will therefore make a parentage order accordingly.