Supreme Court New South Wales Medium Neutral Citation: Application by JSC & RSC [2013] NSWSC 440 Hearing dates: IN CHAMBERS Decision date: 30 April 2013 Jurisdiction: Equity Division - Adoption List Before: Hallen J Decision: Order for the transfer of the parentage of the child. Catchwords: FAMILY LAW AND CHILD WELFARE - Surrogacy - Application for parentage order under Surrogacy Act 2010 in relation to child of a surrogacy arrangement entered into after the commencement of Act - Application by married couple - Court may make parentage order upon compliance with preconditions provided by the Act and by UCPR Part 56A - Satisfaction of certain preconditions - Relevant preconditions specified are mandatory - Other non-mandatory preconditions may be waived if exceptional circumstances exist - UCPR rule 56A.9 - Insufficient evidence of legal advice given in present case - Subsequently provided - Court able to make parentage order Legislation Cited: Civil Procedure Act 2005 Surrogacy Act 2010 Uniform Civil Procedure Rules Cases Cited: Application of AP [2011] NSWSC 1389 Application of MM & KF, Re [2012] NSWSC 445 Lowe v Barry [2011] FAMCA 625 Texts Cited: P Langan, Maxwell on Interpretation of Statutes, 12th ed (1969), Sweet & Maxwell Category: Principal judgment Parties: JSC and RSC and CAG and CIG File Number(s): 201/2012 Judgment - IN Chambers The Background 1HIS HONOUR: The Plaintiffs, JSC and RSC, a married couple, as intended parents, apply for a parentage order, under the Surrogacy Act 2010 ("the Act"), in respect of the child HR, who was born in June 2012. In the proceedings, the birth mother, CAG, and her husband, CIG, are named as the Defendants. 2The Plaintiffs' application has been dealt with in Chambers, in the absence of the public and without any attendance by, or on behalf of, the parties: Uniform Civil Procedure Rules ("UCPR") rule 56A.4(1). Neither of the parties had made an application for a preliminary hearing which would prevent this occurring. 3However, for reasons to which I shall come, it is necessary to publish these reasons to avoid other parties having the same deficiency in evidence and the consequent delay, that has occurred in this case. The deficiency of evidence has now been remedied. Hopefully, legal representatives of other parties making an application of this type will ensure that all of the mandatory preconditions specified in the Act and the evidence required by the UCPR are satisfied. The Law 4The Act commenced on 1 March 2011. A parentage order is defined in s 4 of the Act as an order made by the court under the Act for the transfer of the parentage of a child. 5Section 5 of the Act defines "surrogacy arrangement" as: "(a) an arrangement under which a woman agrees to become or to try to become pregnant with a child, and that the parentage of the child born as a result of the pregnancy is to be transferred to another person or persons (a "pre-conception surrogacy arrangement"), or (b) an arrangement under which a pregnant woman agrees that the parentage of a child born as a result of the pregnancy is to be transferred to another person or persons (a "post-conception surrogacy arrangement")." 6In s 5 of the Act, a reference to the "birth mother", in relation to a surrogacy arrangement, "is a reference to the woman who agrees to become pregnant, or to try to become pregnant with a child, or is pregnant with a child, under the surrogacy arrangement" and a reference to an "intended parent" is "a reference to a person to whom it is agreed the parentage of a child is to be transferred under the surrogacy arrangement". 7Benjamin J in Lowe v Barry [2011] FAMCA 625, at [3], noted: "In a community understanding, surrogacy is said by Wikipedia to be: ... an arrangement in which a woman carries and delivers a child for another couple or person. This woman may be the child's genetic mother (called traditional surrogacy), or she may carry the pregnancy to delivery after having an embryo, to which she has no genetic relationship, transferred to her uterus (called gestational surrogacy)...." 8In the present case, the evidence reveals that this was a gestational surrogacy. 9Brereton J has outlined the general operation of, principles in, and procedure under the Act, in Application of AP [2011] NSWSC 1389, and has followed that decision in Re Application of MM & KF [2012] NSWSC 445. I am indebted to his Honour and propose to proceed in the same manner as his Honour relevantly outlined in those two cases. 10By s 12 of the Act, the court may, on application, make a parentage order in relation to a child of a surrogacy arrangement, and the purpose of a parentage order is to transfer the parentage of a child of a surrogacy arrangement. 11By s 39 of the Act, on the making of the parentage order in relation to a child, the child becomes a child of the intended parent or parents named in the order, they become the parents of the child, and the child stops being a child of a birth parent and the birth parent stops being a parent of the child. Thereafter, the child of the surrogacy arrangement has the same rights in relation to the intended parent or parents named in the order as a child born to the parent or parents, and the intended parent or parents named in the order have the same parental responsibility as the birth parent had before the making of the order. The Proceedings 12The surrogacy arrangement, in this case, was made in a written agreement dated 9 June 2011. It is, therefore, not "a pre-commencement surrogacy arrangement" which is one entered into before the commencement of Part 3 of the Act: s 15. As stated, the Act commenced on 1 March 2011. 13The Plaintiffs filed a Summons on 5 December 2012. This is within the period of not less than 30 days, and not more than 6 months, after HR's birth: s 16 of the Act. 14The Plaintiffs also filed evidence of the matters referred to in UCPR rule 56A.8, with the result I am satisfied that: (a) Having regard to the surrogacy arrangement, the care arrangements for HR since birth, and the other matters identified in the evidence relating to HR, the making of the parentage order would be in the best interests of HR: s 22. (b) This was not a commercial surrogacy arrangement: s 9 and 23. (c) The surrogacy arrangement was a pre-conception surrogacy arrangement: s 24. (d) At the time of entering into the arrangement, the intended parents, the Plaintiffs, were a couple, being husband and wife: s 25. (e) The child is under eighteen years of age, but not of sufficient maturity to express her own wishes: s 26. (f) The birth mother, CIG, was at least 25 years old, when she entered into the surrogacy arrangement: s 27. (g) Both Plaintiffs were at least 18 years old when they entered into the surrogacy arrangement: s 28. (As they were not, at the relevant time, under 25 years of age, the requirement of s 29 that the intended parent be of sufficient maturity to understand the implications of the making of the parentage order does not apply.) (h) There is a medical or social need for the surrogacy arrangement: s 30. (i) All of the affected parties (the Plaintiffs and the Defendants) consent to the making of the parentage order and a written consent has been filed: s 31 (j) The Plaintiffs reside in New South Wales, and HR is living with them at the time of the determination of the proceedings: s 32 and s 33. (k) The surrogacy arrangement was in writing, having been entered into in June 2011: s 34. (l) A qualified counsellor counselled each of the affected parties before they entered into the surrogacy arrangement and each of those parties was well informed, and fully comprehended, the social and psychological implications before doing so: s 35. (m) The birth of the child has been registered in accordance with the requirements of the Births Deaths and Marriages Registration Act 1995: s 38. (n) Given the child's age, the child's wishes are not the subject of report. 15In compliance with s 17 of the Act and UCPR, rule 56A.7, a report of an independent counsellor was filed, which includes the counsellor's assessment that each affected party understands the social and psychological implications of the making of a parentage order (both in relation to the child and the affected parties); that each affected party understands the principle that openness and honesty about a child's birth parentage is in the best interest of the child; that suitable care arrangements are proposed by the Plaintiffs in relation to the child; that the Plaintiffs have good parenting capacity; and that all consents given by the affected parties are informed consents, freely and voluntarily given. The Deficiency of Evidence 16Section 36 of the Act provides: "(1) Each of the affected parties must have received legal advice from an Australian legal practitioner about the surrogacy arrangement and its implications before entering into the surrogacy arrangement. (2) The legal advice obtained by the birth mother and the birth mother's partner (if any) must have been obtained from an Australian legal practitioner who is independent of the Australian legal practitioner who provided legal advice about the surrogacy arrangement to the applicant or applicants. (3) This precondition does not apply to a pre-commencement surrogacy arrangement. (4) If the Court grants leave to an intended parent to make a sole application in respect of a surrogacy arrangement that involves 2 intended parents, it is not necessary to establish that the intended parent who is not a party to the application received legal advice about the surrogacy arrangement." 17The requirement of UCPR rule 56A.9, for an affidavit by a legal practitioner as to advice given prior to entering into the surrogacy arrangement, was not, until recently, complied with. That rule states: "(1) An application for a parentage order must be accompanied by an affidavit sworn by each Australian legal practitioner who gave advice to a person for the purpose of satisfying the precondition to the making of a parentage order referred to in section 36 of the Surrogacy Act 2010. (2) The affidavit must state: (a) the name of the affected party to whom the advice was given, the role of the affected party and the date the advice was given, and (b) that independent legal advice was given to the person before the person entered into the surrogacy arrangement, and (c) the Australian legal practitioner's belief that the person appeared to understand the legal advice given. (3) This rule does not apply in respect of a pre-commencement surrogacy arrangement (within the meaning of the Surrogacy Act 2010)." 18Because this is not a pre-commencement surrogacy arrangement, the rule applies. 19There was no affidavit of any solicitor filed in the proceedings when this was initially considered in Chambers. There was a copy of a Statement of Independent Legal Advice attached to the Surrogacy Agreement, from two different solicitors, which statement, in each case, dealt with some of the matters referred to in s 36(1) and (2) of the Act, and which statement appears to have been signed by the legal practitioner, in each case, who provided a summary of the advice to each of the affected parties. 20Yet, the Statement of Independent Legal Advice, in each case, did not refer to the role of the affected party to whom advice was given (although there was a reference to the Surrogacy Agreement in which that role was identified) or to the legal practitioner's belief that the person to whom the advice was given appeared to understand the legal advice. 21Additionally, there was no reference to the nature of the legal advice stated/outlined, other than by reference to "the Agreement to which the Statement is attached". 22Consideration was given to whether, pursuant to s 14 of the Civil Procedure Act 2005 ("CPA"), the Court should dispense with the requirements of UCPR rule 56A.9. Of course, to do so, the Court must be "satisfied that it is appropriate to do so in the circumstances of the case": s 14 CPA. 23It is to be noted that the word "must" appears several times in this rule, firstly in relation to what must accompany the application (an affidavit) and then what must be stated in that affidavit. (In fact, the word appears regularly throughout UCPR part 56A.) 24The ordinary meaning of "must" is that something is imperative or mandatory and not simply directory. Whether used in the present or future tense, the word expresses necessity and inevitability. 25In the Shorter Oxford English Dictionary, the appropriate meaning of "must" is "expressing necessity: Am (is are) obliged or required to; have (has) to; it is necessary that (I, you, he, it, etc) should''. In ordinary usage, "may" is permissive and "must" is imperative'' (Maxwell on Interpretation of Statutes, 12th ed (1969) p 324). 26In my view, the rule provides an imperative requirement that is to be stated. That requirement is an important one and should not lightly be dispensed with, since the advice referred to is for the purpose of satisfying the precondition to the making of a parentage order referred to in s 36 of the Act. 27Even though each of the legal practitioners practices in Western Australia, I considered that it would not be difficult, or expensive, or unduly time consuming, to obtain an affidavit from each legal practitioner that complied with the rule and which dealt with the matters referred to in s 36 of Act and the rule. It follows that I was not satisfied that it was appropriate to dispense with the requirement provided by the rule in the circumstances of the case. 28The matter was again brought to the attention of the Plaintiffs' solicitors and an additional affidavit by each of the solicitors, which was in identical form, was filed. Regrettably, each, again, was deficient because it did not state "the Australian legal practitioner's belief that the person appeared to understand the legal advice given". 29However, a subsequent affidavit, by each of the legal practitioners who provided the advice, and which stated all of the necessary information referred to in UCPR rule 56A.9 was subsequently received. Determination 30I am now satisfied that it would be appropriate to make a parentage order and am able to deal with the matter in Chambers. Happily, I am able to make the following orders: (a) The court makes an order for the transfer of the parentage of the child, HR, born on 26 June 2012 ("the child") from CMG to the plaintiffs JLSC as father and RJSC as mother and approves the name "SC" as the surname and "HR" as the given names of the child. (b) The court directs that the Registrar give notice of this order: (i) pursuant to Surrogacy Act 2010, s 49, to the Registrar of Births, Deaths and Marriages; (ii) pursuant to Surrogacy Act, s 51, to the Director-General of the Department of Health. 31(The precise form of order 1 should be taken from the draft Order provided by the parties. It is an offence under the Act to publish any material that identifies, or is reasonably likely to identify, a person as a person affected by a surrogacy arrangement: s 52.) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 May 2013