A 2017 Victorian Case in the Full Court of the Family Court of Australia highlighted the difficulties in obtaining a declaration of parentage in cases where couples within Australia seek out an international surrogate. This case involved Applicant 1 (the Wife) and Applicant 2 (the Husband) who lived in Victoria and the child Q. The Respondents were the Q’s birth Mother and husband who were not involved in the proceedings.
The Husband and Wife entered into a surrogacy arrangement with an anonymous donor as the Wife was unable to conceive naturally or with the assistance of in vitro fertilisation. Q, was born in 2014 and began to live with the couple in Victoria. Q received an Australian Certificate of Citizenship by Descent and an Australian Passport. The Husband and Wife initiated proceedings and sought the following Orders:
Equal shared parental responsibility for Q;
A declaration of Parentage; and
As an alternative to 1, leave for the Husband to apply for step parent adoption as the biological Father as an alternative to obtaining a declaration.
In 2015, the trial Judge made the parenting Orders providing equal shared responsibility for the child. However, he declined to make Orders about parentage. This was because neither the Husband nor the Wife fit the definition of ‘parents’ under the Family Law Act 1975 (federal legislation) or the Victorian Status of Children’s Act 1974 (state legislation).
Secondly, the Court did not have jurisdiction to make Orders in the current situation. s69VA of the Family Law Act deals with declarations of parentage. However, the issue of Parentage must be one amongst others in proceedings which have already been initiated before consideration of a declaration can occur. For example, this may be the case where the child’s parentage is to be determined for the purpose of whether a party would be liable to pay child maintenance and issues of who the child resides with.
The parties appealed the decision in 2017. The appeal was ultimately dismissed.
This case shows that declarations of parentage cannot be the sole reason for starting Court proceedings. The situation also becomes more complex when considering federal and state legislation together. However, the Court will consider parentage in circumstances where proceedings have already been initiated and parentage is incidental to other issues the Court needs to consider including child maintenance and ‘live with’ or ‘spend time with’ orders.
If you are looking for a family lawyer to help with you parenting case, please do not hesitate to contact Fox & Staniland (02) 9440 1202.