(FAM-SURROGACY)
1. Introduction
1.1 This Practice Direction applies to applications for parenting orders filed in the Federal Circuit and Family Court of Australia (FCFCOA) in relation to a child born under a surrogacy arrangement, whether such arrangement is recognised under the laws of a State of Australia or otherwise (surrogacy proceedings).
1.2 This Practice Direction does not apply to surrogacy proceedings where final parenting orders under Part VII of the Family Law Act 1975 (Cth) (Family Law Act) have already been made in relation to the child.
1.3 It is to be read together with:
- the Family Law Act;
- Regulation 12CAA of the Family Law Regulations 1984 (Cth);
- the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules); and
- Central Practice Direction – Family Law Case Management.
1.4 The parties are directed to refer to Family Law Practice Direction – Financial proceedings in the event the proceeding also involves an application for financial orders. In such cases, both Practice Directions apply to the proceeding.
1.5 This Practice Direction applies to all proceedings commenced on or after 1 September 2021. This Practice Direction will also apply to all proceedings commenced prior to 1 September 2021, unless unfair or impractical to do so.
1.6 To the extent this Practice Direction is inconsistent with any act, regulation, rule or other legislative provision (whether or not expressly listed above), the act, regulation, rule or other legislative provision shall prevail.
Before a proceeding starts
1.7 Each prospective party to the proceeding must comply with the pre-action procedures in Schedule 1 of the Family Law Rules, unless an exception in rule 4.01(2) applies. Those pre-action procedures require parties to take genuine steps to resolve the dispute before proceedings are instituted.
1.8 A Genuine Steps Certificate must be filed with any Initiating Application (Family Law) or Response to Initiating Application in surrogacy proceedings.
2. Application
Parties to surrogacy proceedings
2.1 A surrogacy proceeding may only be commenced by a person listed in section 65C of the Family Law Act.
2.2 An application must include all necessary parties: see Part 3.1 of the Family Law Rules.
Making an application and documents to file
2.3 A surrogacy proceeding is commenced by filing an Initiating Application (Family Law).
2.4 An Initiating Application (Family Law) may include an application for interlocutory orders.
2.5 The following documents must be filed with an Initiating Application (Family Law) in surrogacy proceedings:
- a Genuine Steps Certificate, confirming the applicant’s compliance with the pre-action procedures listed in Schedule 1 of the Family Law Rules;
- unless the Family Law Rules require an affidavit to be filed, a Parenting Questionnaire;
- an affidavit(s) including the required evidence as set out in rule 1.10 of the Family Law Rules, and, if the application seeks interlocutory orders, the facts relied on in support of the interlocutory orders sought;
- a certificate given to the applicant by a family dispute resolution practitioner under section 60I(8) of the Family Law Act, unless a party submits that an exemption applies under section 60I(9) of the Family Law Act, in which case an affidavit or an Affidavit – Non-Filing of Family Dispute Resolution Certificate setting out the factual basis of the exception claimed under section 60I(9) is required: see rule 4.02 of the Family Law Rules;
- a Notice of Child Abuse, Family Violence or Risk; and
- a copy of any family violence order affecting the child or a member of the child’s family in accordance with rule 2.10 of the Family Law Rules.
2.6 The applicant must also pay the filing fee set by regulation, unless an exemption applies. A Judge or Judicial Registrar may require a party to give an undertaking to pay a filing fee before accepting a document for filing.
When an affidavit is required
2.7 An affidavit is required to be filed with an Initiating Application (Family Law) in all surrogacy proceedings: see rule 1.10 of the Family Law Rules. The evidence required in an affidavit does not need to be direct evidence, but must be in admissible form.
2.8 Any affidavit filed must be in the proper form as outlined in rules 2.14 (Formal requirements for documents) and 5.08 (Limit on number and length of affidavits) of the Family Law Rules.
Urgent applications
2.9 If an application is urgent, the applicant must seek an order that the matter be given an urgent listing (urgent application). An urgent application must be accompanied by:
- an affidavit stating the facts relied on in support of the urgent application; and
- a cover letter as to urgency, outlining the nature of the application and the basis upon which an urgent listing is required. The cover letter should refer to specific paragraphs of the affidavit relied upon in support of the urgent application.
2.10 If no application for final orders has been made, the urgent application should be included in the interlocutory orders sought in the Initiating Application (Family Law). If an application for final orders has already been made, an urgent application should be made by filing an Application in a Proceeding.
Notifying the other party/parties
2.11 The applicant must serve the following documents on all other parties in accordance with Part 2.6 or Part 2.7 (as appropriate) of the Family Law Rules:
- Initiating Application (Family Law);
- any affidavit filed;
- Notice of Child Abuse, Family Violence or Risk;
- any Parenting Questionnaire filed;
- Genuine Steps Certificate; and
- the Marriage, Families and Separation brochure.
2.12 If an interlocutory order is sought to be made by the Court without notice being given to the respondent (application without notice), the applicant must satisfy the Court of the requirements set out in rule 5.11 of the Family Law Rules.
What the Court will do next
2.13 Upon filing the Initiating Application (Family Law) and supporting documents, the Court will fix a date as soon as practicable for the first Court event.
2.14 Any application made by a party for an urgent listing will be determined by a Judicial Registrar on the papers.
2.15 If an Initiating Application (Family Law) or Response to Initiating Application is filed without a Genuine Steps Certificate, or before pre-action procedures have been complied with, and no exemption is applicable, the Court may stay the application until such time as the parties comply with the pre-action procedures: see rule 4.04 of the Family Law Rules.
2.16 If an Initiating Application (Family Law) is filed without:
- a certificate issued pursuant to section 60I(8) of the Family Law Act;
- an affidavit setting out the factual basis of the exception claimed under section 60I(9) of the Family Law Act; or
- an Affidavit – Non-Filing of Family Dispute Resolution Certificate,
the Court must stay the application until such time as the applicant complies with the requirements of section 60I: see section 60I(7) of the Family Law Act.
3. Responding to an application
3.1 A respondent must file a Response to Initiating Application if consenting to or opposing any of the orders sought by the applicant, or if seeking any other orders in accordance with Part 2.4 of the Family Law Rules.
3.2 However, if a respondent does not wish to contest any of the orders sought by the applicant and will submit to any order the court may make, a Submitting Notice should be filed in accordance with rule 2.22 of the Family Law Rules.
3.3 The following documents must be filed with a Response to Initiating Application:
- if the respondent opposes any of the interlocutory orders sought by the applicant or seeks interlocutory orders in their Response to Initiating Application, an affidavit;
- a Notice of Child Abuse, Family Violence or Risk;
- unless the Family Law Rules require an affidavit to be filed, a Parenting Questionnaire; and
- a Genuine Steps Certificate, confirming the respondent’s compliance with the pre-action procedures listed in Schedule 1 of the Family Law Rules.
3.4 A Response to Initiating Application must be filed and served within 28 days of service of the application to which it relates: see rule 2.18(2) of the Family Law Rules.
If the Response to Initiating Application raises a different type of proceedings
3.5 In the event a Response to Initiating Application seeks orders related to financial proceedings or another type of proceedings not sought by the applicant in the application, the parties are directed to refer to Family Law Practice Direction – Financial proceedings or such other relevant Practice Direction. In such cases, both Practice Directions apply to the proceeding.
3.6 Where a respondent seeks orders related to financial proceedings or another type of proceedings for the first time in the Response to Initiating Application and the applicant seeks to oppose those orders or seek different orders, the applicant must file a Reply with respect to those orders pursuant to rule 2.21 of the Family Law Rules.
4. Further information
4.1 For information on how family law proceedings are conducted in the FCFCOA, please refer to Division 12A of Part VII of the Family Law Act and Central Practice Direction – Family Law Case Management.
4.2 Parties should also consult the FCFCOA website at www.fcfcoa.gov.au for further information about surrogacy proceedings.
The Honourable Justice William Alstergren
Chief Justice (Division 1) | Chief Judge (Division 2)
Federal Circuit and Family Court of Australia
Date: 1 September 2021
Updated: 28 November 2022
