GP v BP [2018] NSWSC 1887

Supreme Court New South Wales

Medium Neutral Citation: GP v BP [2018] NSWSC 1887 Hearing dates: 5 December 2018 Date of orders: 05 December 2018 Decision date: 05 December 2018 Jurisdiction: Equity - Adoptions List Before: Sackar J Decision: Orders Made – Adoption Catchwords: FAMILY LAW & CHILD WELFARE – application for parentage order under Surrogacy Act 2010 (NSW) – applicant not resident in NSW contrary s 32 – substitute parentage order not available in Victoria as child was not conceived in Victoria – whether s 32 not mandatory precondition and whether exceptional circumstances justify making parentage order – not mandatory and exceptional circumstances found Legislation Cited: Surrogacy Act 2010 (NSW) 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: GPM (first plaintiff) GPF (second plaintiff) BPM (first defendant) BPF (second defendant) Representation: Counsel: J Longworth Solicitors: Robb & Associates, Solicitors File Number(s): A29/2018

Judgment

Procedural history 1. These proceedings were commenced by way of Summons filed on 19 February 2018 concerning predominantly an application pursuant to s 12 of the Surrogacy Act 2010 (NSW) (the Act) for orders that the parentage of the child SCR born 22 August 2017 be transferred from BPM and BPF (the birth parents or the Defendants) to GPM and GPF (the genetic parents or the Plaintiffs). 2. The Plaintiffs (or applicants to use the wording of the Act) to the proceedings are the genetic parents and are pursuant to s 5 of the Act both "intended parents". The Defendants to the proceedings are the birth parents who do not oppose the orders sought. 3. Relevantly, the Act sets out a number of preconditions before orders can be made for making of a parentage order (s 18), and it makes a clear distinction between preconditions which are mandatory and those which are not mandatory. For not mandatory preconditions the Court must be satisfied that "exceptional circumstances justify the making of the parentage order, despite the precondition not having been met" (s 18(2)(b)). 4. In this particular application in my view all the relevant mandatory preconditions have been met. However, the only precondition which has not been met is that the applicants "must be resident in New South Wales at the time of the hearing of the application" (s 32). The Plaintiffs reside in Victoria. 5. Having carefully considered the papers on 5 December 2018 I was satisfied that s 32 was not a mandatory precondition and exceptional circumstances existed that justified the making of the parentage order pursuant to s 12. I made those orders then and indicated I would provide reasons. These are those reasons.