Proctor : April 2017
22 PROCTOR | April 2017 Family Court recognises parents under US surrogacy order Re Halvard  FamCA 1051 For the first time, the Family Court of Australia has ordered the registration of a pre-birth surrogacy order made in the United States, resulting in the genetic parents being recognised as the lawful parents of the child in both the US and Australia. It is possible to register overseas child orders in the Family Court, the Family Court of Western Australia or a state or territory Supreme Court under s70G of the Family Law Act 1975. One effect of registration is that the overseas order can be enforced here. In Re Halvard  FamCA 1051, the intended parents, Mr Halvard and Ms Fyodor, were the genetic parents of a child, X, who had been born via a surrogacy arrangement in Tennessee. Mr Halvard was an Australian citizen, Ms Fyodor an American citizen. They lived in the United States. The child X had obtained Australian citizenship. An order made in Tennessee, made when the surrogate was 30-32 weeks pregnant declared that when X was born, Mr Halvard and Ms Fyodor were the parents and that they had custody of X. Mr Halvard and Ms Fyodor sought to have the Tennessee order registered with the Family Court. Justice Forrest said:1 “They want this, it is said, as they intend to travel with the child to Australia from time to time to visit members of Mr Halvard’s family who live there. They say they have also not ruled out moving to Australia to live as a family in the future. They seek to have the Orders registered so that their parent-child relationship with the child X is as lawfully recognised in Australia as it is in the USA.” To be able to register the order under s70G of the Family Law Act and reg. 23 of the Family Law Regulations 1984, they had to show that: 1. The pre-birth order was an overseas child order within the definition of s4 of the Family Law Act. 2. A certified copy of the order and a certificate of currency were provided. 3. Reasonable grounds for believing that either of the parties or the child were ordinarily resident in, present in, or proceeding to, Australia. 4. The order was made in a prescribed overseas jurisdiction, as set out in schedule 1A of the Family Law Regulations. 5. The judge in the exercise of discretion ought to register the order. The second attempt to register The parents had previously sought to register the order through the Commonwealth Attorney-General’s Department, which sent the documents to a registrar of the court. The registrar, despite the regulations saying that the registrar shall register, declined to do so, and gave reasons. Instead of seeking a review, the intended parents instead applied direct to the court to register the order.