Re N

1. [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 child who is almost 12 months old. I will refer to her as N. Through their solicitor, the applicants accept that not all of the statutory requirements for the making of a parentage order have been met. They seek to have the Court make such an order anyway, on the ground that the present case involves “exceptional circumstances”.

2. [2]

   N was born pursuant to a surrogacy arrangement between her birth parents (“G” and “H”) and her intended parents (“J” and “K”), who are the plaintiffs in the proceedings. Both couples live in Sydney. N has been living with J and K since she was discharged from hospital.

3. [3]

   J and K are a same sex male couple. H is the sister of K. G and H both fully support the application before the Court and have given affidavit evidence in support of it.

Background and procedural history

1. [4]

   The issue which has arisen in the present case concerns the requirements contained in the Act for the involvement of a “qualified counsellor” at various stages of the surrogacy process. The Act defines the term “qualified counsellor” as a person who has the experience or qualifications (or both) of a kind required by regulations made under the Act to exercise the functions of a counsellor under the Act.

2. [5]

   In this judgment, I will refer to a qualified counsellor under the Act as a “counsellor” for short. Three provisions of the Act require the involvement of such a counsellor.

3. [6]

   First, s 35(1) requires that all the affected persons (that is, the birth parents and the intended parents) receive counselling from a counsellor before entering into the surrogacy arrangement (“pre-surrogacy counselling”). The counselling must address the proposed arrangement itself and its “social and psychological implications”.

4. [7]

   Second, s 35(2) requires that, following the birth of the child and before consenting to the parentage order, the birth parents receive further counselling from a counsellor (“relinquishment counselling”). Again, the counselling must address the surrogacy arrangement and its social and psychological implications.

5. [8]

   Third, s 17 of the Act requires that an application for a parentage order be supported by a report from an independent counsellor. The section relevantly provides:

6. [9]

   Strictly speaking, all that s 35 requires is that it be proved to the satisfaction of the Court that the relevant counselling has been provided to the birth parents or the intended parents, as the case may be. This could if necessary be proved by evidence from the parents themselves. But it is usual for the evidence to be provided in a formal report from the counsellor.

7. [10]

   By contrast, s 17 requires the provision of a report by the counsellor to the Court. It does not in terms require that the counsellor provide any further counselling, but it does contemplate that, at least in the usual case, both the intended parents and the birth parents will be interviewed by the counsellor.

8. [11]

   In the present case, the pre-surrogacy counselling was provided to both the birth parents and the intended parents, as is permitted by s 35(1)), by a single qualified counsellor, Ms Beverley Aronstan. The counselling was provided in February and March 2022 and is the subject of a pre-surrogacy report from Ms Aronstan which is in evidence.

9. [12]

   The relinquishment counselling in the present case was provided by another counsellor, Mr Ian Trevallion. The counselling was provided on 30 August last year and was the subject of a report dated 3 September.

10. [13]

    On the same day as Mr Trevallion provided relinquishment counselling to the birth parents, he interviewed both the birth parents and the intended parents for the purposes of preparing a s 17 report. He issued the report on 10 September.

11. [14]

    The application itself had actually been commenced by summons on 15 August. The summons was supported by affidavits from each of birth parents and the intended parents. On 20 September, a further affidavit from Mr Trevallion was filed in support of the application, which attached his relinquishment report and his s 17 report.

12. [15]

    Following the filing of further affidavits required for the purposes of the application, it was referred to me in chambers. I was concerned about the s 17 report prepared by Mr Trevallion. On the face of it, Mr Trevallion was not an “independent counsellor” because he had provided relinquishment counselling to the birth parents.

13. [16]

    Following correspondence with the applicants’ solicitor, Ms Ruggero, I raised the question at a directions hearing on 11 November.

14. [17]

    Ms Ruggero’s response was to obtain a new relinquishment report from a different counsellor, Ms Katrina Hale. On 10 December, Ms Ruggero forwarded a copy of the new report and invited the Court to reconsider the application.

15. [18]

    I was not sure that this solved the problem which I had raised at the directions hearing. I had a response sent in the following form:

16. [19]

    In response, a further s 17 report was commissioned from Mr Trevallion. The report stated:

17. [20]

    Mr Trevallion’s new report was sent to the Court on 3 February under cover of an email requesting that the Court “advise” whether the requirements of the legislation had now been met. I was not satisfied that they had. A response was sent which stated:

18. [21]

    On 12 March the applicants filed a further two affidavits, indicating that the continuing proceedings were imposing a substantial degree of stress and cost. No submissions or covering note accompanied those affidavits, and it was unclear to me whether the Court was being asked to undertake a further reconsideration of the application, and if so, on what material.

19. [22]

    In order to bring the application to a head, I listed the proceedings before me on 14 March for further directions. But shortly before the scheduled time for the hearing, the solicitors for the applicants sent an email foreshadowing the filing of written submissions. As I understood the email, the Court was being invited to deal with the application on the papers, as ultimately filed. In due course, affidavits from each of the birth parents were filed together with written submissions formally requesting the making of a parentage order in accordance with s 18(2) of the Act.

Exceptional circumstances

1. [23]

   S 18 of the Act reads:

2. [24]

   Both birth parents and both intended parents deposed that they relied upon Mr Trevallion’s advice throughout the surrogacy process. In the affidavit of J dated 12 March this year he deposed at [16]-[18]:

3. [25]

   J also deposed that the costs of counsellor’s reports in this matter had so far been around $4,000. He continued at [20]-[23]:

4. [26]

   In her affidavit of 24 March, G deposed:

5. [27]

   The application was supported by a written submission from Mr Tyson Beckman, solicitor. He presented the question as being whether there were exceptional circumstances within the meaning of s 18(2) which justified “deviating from the requirements of ss 17 and 35(2) of the Act”. He submitted that the provision of “counselling reports pursuant to ss 17, 35(1) and (2)” were not stated to be mandatory pre-conditions. The Court therefore had power to dispense with compliance with those provisions under s 18(2), and in the circumstances was justified in doing so.

6. [28]

   In support this submission, Mr Beckman first referred me to the statement of White J in S v B; O v D [2014] NSWSC 1533. In that case, White J was addressing a case where the child’s birth had not been properly registered in accordance with the requirements of s 38(1) of the Act. This was because the birth parents had registered the intending father as the child’s father on the birth certificate alongside the birth mother. This was contrary to the requirements to the Birth, Deaths and Marriages Registration Act 1995, which provided that the birth father was conclusively deemed to be the child’s father. The step had been taken on the basis of legal advice provided to the birth parents by their solicitor, so as to make it easy for the intended parents to deal with governmental and medical requirements.

7. [29]

   White J said:

8. [30]

   Mr Beckman submitted that the present case was the same. As shown by their affidavits, all the affected parties had relied on a representation by Mr Trevallion that he was able to provide both the relinquishment counselling and the independent counsellor’s report in support of the application. Mr Beckman submitted that, on the evidence, the affected parties had clearly acted in good faith, and the observations made by White J were in point.

9. [31]

   Mr Beckman next pointed to the delay in the progress of the application. He submitted that, having regard to the six-month limit imposed by s 16, it would usually be expected that the application would have been determined by now. As it was, on the evidence, a further two months or so would be required to obtain a fresh s 17 report. Mr Beckman submitted that this factor likewise took the application outside the ordinary course and justified the invocation of s 18(2).

10. [32]

    Finally, Mr Beckman referred me to the following statement of Ball J, as his Honour then was, in AB & CD v EF [2013] NSWSC 866 at [11], in connection with s 18:

11. [33]

    Mr Beckman submitted that the purposes of ss 35(2) and 17 were threefold. First, to ensure that the best interests of the child were secured by the making of a parentage order sought; second, the ensure that the parties fully understood and comprehended the effect of the parentage order; and, third, to assist the Court in determination of the application.

12. [34]

    As to the best interests of the child, Mr Beckman submitted that the evidence of the affected parties clearly demonstrated that this condition was satisfied. In particular, Mr Beckman submitted that there was really no practical alternative but to make the order and confirm the domestic arrangements which had been in place since the child was born.

13. [35]

    As to the second factor, Mr Beckman relied on what I said in Re L; Application for Parentage Order [2022] NSWSC 1155, a case where the pre-surrogacy counselling had been undertaken, but not prior to entry into the surrogacy agreement: [27].

14. [36]

    As to assisting the Court in the determination of the application, Mr Beckman emphasised that the report, while important, was only provided to assist the Court. The Court was not bound by Mr Trevallion’s opinions and the prime duty of Mr Trevallion, as an expert, was to identify the facts and the reasoning process which justified the opinions expressed, leaving it to this Court, as the tribunal of fact, to evaluate that opinion: Australian Securities & Investments Commission v Rich [2005] NSWCA 152 at [105].

15. [37]

    Mr Beckman submitted that Mr Trevallion’s relinquishment counselling and independent counsellor’s reports had complied with the necessary requirements (indeed, in the case of the relinquishment counselling report, over-complied with it, by providing information at greater length then was actually required).

16. [38]

    I do not agree that ss 17 and 35 should be bracketed together for the purposes of this application, as Mr Beckman has done. No question arises in the present case as to the requirements of s 35(2). There was nothing to prevent Mr Trevallion from providing the relinquishment counselling to the birth parents. The problem only arose because, having done so, he then provided the independent counsellor’s report.

17. [39]

    It is now accepted that Mr Trevallion lacked the independence required by s 17(7), and this problem could not be cured by having Ms Hale providing further relinquishment counselling. This was because of his prior involvement in providing relinquishment counselling. The Court’s focus must be on dispensing with the requirement for independence in s 17(7).

18. [40]

    So far as the general principles which govern the application of s 18(2) are concerned, I remain of the view expressed in Re L:

19. [41]

    In other words, “exceptional circumstances” for the purposes of s 18(2) are circumstances which justify the making of an exception to the rule in question. As Ball J said, this requires some analysis from the Court of the rationale of that rule. It is not a merely mechanical task of deciding how frequently (if the evidence before the Court allowed that sort of judgment to be made) non-compliance might occur.

20. [42]

    I do not think that the comments I made in Re L in this regard provide any support for Mr Beckman’s argument in the present case. Those comments addressed the requirements for counselling in s 35. As already noted, s 17 does not require counselling as such. It requires the counsellor to provide a report to the Court on the merits of the application.

21. [43]

    While it is true that the Court is not bound by the opinion expressed in the report, the legislature has gone to the trouble of requiring an application to be accompanied by such a report, and has effectively deemed the qualified counsellor who prepares it as an expert in the relevant subject matter for the purposes of the law of evidence (Evidence Act 1995 s 79). As the expert witness code of conduct under the rules recognises, it is important that expert evidence should be independent, and s 17(7) is clearly a statutory recognition of that requirement, and the requirement that the report be provided by an independent counsellor in s 17 is a clear statutory recognition of that imperative.

22. [44]

    In these circumstances, failure to comply with the requirements of independence would arguably deprive a report so produced of much of its value. But it is not necessary to consider this question further. That is because I think there are other obstacles to Mr Beckman’s argument.

23. [45]

    In the first place, there is another point of distinction with Re L. In that case the counselling had not been provided before entry into the surrogacy arrangement, and it was impossible therefore to comply with it. That is not the case here. I find it difficult to accept that the failure to comply with a requirement which could still readily be satisfied could ever amount to an “exceptional circumstance” for the purposes of s 18(2).

24. [46]

    I see the present case as being closer to that considered by Hallen J in JSC & RSC [2013] NSWSC 440, where the applicants failed to provide sufficient evidence of the earlier receipt of legal advice as required by s 36. His Honour said at [27]:

25. [47]

    No doubt requiring a fresh s 17 report to be prepared by an independent counsellor will take some additional time and will result in some additional costs. But I do not see the lapse of a further two months or so being of any great weight for s 18 purposes, especially when it results from the way in which the application for a parentage order has been presented.

26. [48]

    As to the additional costs, there is no evidence that the applicants are unable to meet the expense of paying for a fresh s 17 report to be prepared by an independent counsellor. And, on the face of it, it is hard to see why they should have to bear the costs of a report which was plainly defective, or for the additional reports from Mr Trevallion (or from Ms Hale for that matter). It is unnecessary to consider Mr Trevallion’s professional obligations to the applicants. On any view their solicitors should have known better.

27. [49]

    There is a yet more fundamental problem with Mr Beckman’s argument. Section 35 appears in Division 4 of Part 3 of the Act, which is headed “Preconditions to making of parentage order”. Section 21 expressly states that the division sets out the preconditions. But s 17 does not appear in that division. This point was made by Darke J in A v X; Re Z [2022] NSWSC 971. His Honour said at [24]-[27]:

28. [50]

    I respectfully agree with his Honour. In my view this conclusion is supported by a further consideration. Section 16, which appears in the same division as s 17, imposes a time limit of six months for the making of applications, but then provides expressly for the Court to be able to entertain an application if “exceptional circumstances” exist. There is no equivalent provision in s 17. In my view, the absence of such a provision in s 17 reinforces the conclusion reached by his Honour. If s 17 has not been complied with, then the Court has no power to dispense with non-compliance pursuant to s 18 or any other provision of the Act.

29. [51]

    A v X; Re Z is different from the present case, in that case no report whatever had been provided in support of the application. In the present case a report has been provided, but it is defective and does not comply with the requirements of the section. The question in the present case is whether the particular requirement, namely the requirement of independence, is a mandatory one: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91].

30. [52]

    Although Project Blue Sky was referred to in submissions, no argument on this question was presented by Mr Beckman. In theory, it would still remain open to argue that the requirement of independence was not a mandatory one, and that Mr Trevallion’s report satisfied the requirements of s 17 despite his lack of independence. If that was so, then the requirements of s 17 would be satisfied and no dispensation would be required. However, in the circumstances of the case the applicants might be better advised simply to obtain a fresh report from an independent counsellor and proceed on that basis.

31. [53]

    For these reasons, I decline to make a parentage order on the ground of “exceptional circumstances”. This of course is not a final refusal of the application, and the applicants are free to resubmit the application with further evidence or submissions to address what I have said in this judgment. I will leave it to the applicants to consider what steps they wish to take, and the application may be reactivated in due course. When the application comes back to the Court, there will need to be evidence that the applicants have not been required to meet the legal costs and counsellor fees which have been wasted as a result of the non-compliance with s 17 of the Act, or which explains why those fees and costs have been properly charged to the applicants despite that non-compliance.

Orders

1. [54]

   The orders I now make are:

   1. (1)

      I decline, on the evidence and submissions before the Court, to make the parentage order sought by the plaintiffs.