BB v DD; Re AA and the Surrogacy Act 2010 (NSW) (No 2) [2015] NSWSC 1825

Supreme Court New South Wales

Medium Neutral Citation: BB v DD; Re AA and the Surrogacy Act 2010 (NSW) (No 2) [2015] NSWSC 1825 Hearing dates: In chambers Date of orders: 01 December 2015 Decision date: 01 December 2015 Jurisdiction: Equity - Adoptions List Before: Robb J Decision: The court makes the orders sought in the summons. Catchwords: FAMILY LAW AND CHILD WELFARE — surrogacy — application for parentage order under Surrogacy Act 2010 (NSW) – previous judgment concerning this application dealt with arrangement as a post-commencement and post-conception surrogacy arrangement – whether applicants' new evidence demonstrates a pre-commencement surrogacy arrangement was entered into in late 2007 – at this time, parties would not have known the future existence of parentage orders or requirements of the Act – parties entered into an oral arrangement and intended to later implement it in an informal manner – whether surrogacy arrangements existed depends on substance of the agreement, not its form – courts finds parties entered into a pre-commencement surrogacy arrangement – present application made more than 2 years after commencement of s 16(2) of the Act – whether exceptional circumstances justify delayed application pursuant to s 16(3) – consideration of term "exceptional circumstances" – s 16 must be applied with regard to s 3 in the best interests of the child – parties did not obtain legal advice at the time of oral surrogacy arrangement, could not predict provisions of the future Act and deferred implementation of surrogacy arrangement due to other reasons – court satisfied that exceptional circumstances existed – remaining issue concerns non-compliance with s 38 – unjustified for court to refuse application based only on s 38 contravention – court warns applicants against non-compliance with s 38 – court grants parentage orders sought Legislation Cited: Births, Deaths and Marriages Registration Act 1995 (NSW) Child Support (Assessment) Act 1989 (Cth) Parentage Act 2004 (ACT) Penalties and Sentences Act 1992 (Qld) Status of Children Act 1996 (NSW) Surrogacy Act 2010 (NSW) Surrogacy Bill 2010 (NSW) Surrogacy Regulation 2011 (NSW) Cases Cited: Baker v R [2004] HCA 45; (2004) 223 CLR 513 BB v DD; Re AA and the Surrogacy Act 2010 (NSW) [2015] NSWSC 1095 Keane v Keane [2013] FamCA 332; (2013) 50 Fam LR 120 MNM and EA v EM; Re ENA and the Surrogacy Act 2010 (NSW) [2015] NSWSC 1813 R v Kelly (Edward) [2000] 1 QB 198; [1999] 2 All ER 13 R v Tootell; Ex parte Attorney-General (Qld) [2012] QCA 273 S v B; O v D [2014] NSWSC 1533 Category: Principal judgment Parties: BB and CC (plaintiffs) DD (defendant) Representation: Solicitors: Andrea Wilson & Associates (plaintiffs) File Number(s): 018/2015