Saturday, 16 September 2017

What the High Court has said about the "traditional" view of marriage

One of the arguments against equal marriage is the argument that to enable equal marriage is  therefore to vary from traditional marriage, and to invoke religion. Traditional marriage is said to be, of course, the union of one man and one woman voluntarily entered into for life.

"Statute law now tells us who are capable of marrying."

-Justice Windeyer in the Marriage Act case (1962)

Of course the obvious problem with that argument is- what about the law? If a marriage is for life (as opposed to entered into for life) then divorce cannot exist. Divorce as a concept, as we saw from the example of Henry VIII onwards, was based on secular law.

The High Court has looked at the concept of marriage in two cases- the Marriage Act case (1962) and Commonwealth v ACT (2013), and demonstrated that the traditional version of marriage is not locked in time- and is determined by the law, not religion.

"The status of marriage, the social institution which that status reflects, and the rights and obligations which attach to that status never have been, and are not now, immutable."  

- Chief Justice French, Justices Hayne, Crennan, Kiefel, Bell and Keane in Commonwealth v ACT (2013)

"The Marriage Act regulates the creation and recognition of the legal status of marriage throughout Australia."

- Commonwealth v ACT (2013)

The High Court in that case ruled that the ACT same sex marriage law was invalid because it conflicted with the Marriage Act 1961. The High Court was at pains to say that the Commonwealth had the power to legislate for same sex marriage, if it chose to do so, and that the topic of marriage under the Constitution was not stuck in a 1900 timewarp of what is and what is not marriage.

Indeed John Howard's amendments in 2004, not any earlier enactment,  are seen as the cause of the current troubles:

"The 2004 amendments to the Marriage Act made plain (if it was not already plain) that the federal marriage law is a comprehensive and exhaustive statement of the law of marriage. Those amendments applied the newly introduced definition of marriage to the provisions governing solemnisation of marriage and gave effect[81] to that definition in the provisions governing the recognition of marriages solemnised outside Australia. Section 88EA of the Marriage Act (inserted[82] by the 2004 amendments) provides expressly that a union solemnised in a foreign country between persons of the same sex must not be recognised as a marriage in Australia."

"The federal Parliament has power under s 51(xxi) to make a national law with respect to same sex marriage."

- Commonwealth v ACT (2013)

Their Honours went on to say:

  1. "The cases commonly referred to as providing a definition of "marriage" in s 51(xxi) of the Constitution must be read in the light of the issues decided in those cases. Each case dealt with a particular question about either succession to property or the jurisdiction of the English courts to grant a decree of dissolution in cases concerning a marriage contracted in, and governed by the law of, a foreign country.
  2. Bethell v Hildyard[39] concerned succession to property by the child of a marriage contracted by an English man in Bechuanaland with a Baralong woman according to the customs of the Baralong people. The marriage was held not to be a valid marriage according to the law of England because the customs of the Baralong people permitted polygamy. The child was held not entitled to succeed to her father's property.
  3. What was said in Hyde v Hyde[40] was directed to the construction of the statute which conferred[41] jurisdiction on the Court for Divorce and Matrimonial Causes to grant a decree of dissolution of marriage. The marriage which the petitioner sought to dissolve had been formed in what was then the Territory of Utah. The law which governed the marriage permitted the husband to take a second wife. The Hyde v Hyde definition was proffered in the course of identifying the difficulties that would have been encountered in seeking to apply the statute (including, as it then did[42], the matrimonial offence of adultery) to a potentially polygamous marriage.
  4. Observing that, at federation, English law would recognise as a marriage only a union having the characteristics described in Hyde v Hyde, and would not provide matrimonial remedies in respect of any other kind of union, accurately describes the then state of the law. But the definitions of marriage given in Hyde v Hyde and similar nineteenth century cases governed what kinds of marriage contracted in a foreign jurisdiction would be treated as yielding the same or similar rights and consequences as a marriage contracted in England in accordance with English law. They were cases which necessarily accepted that there could be other kinds of relationship which could properly be described as "marriage" and the cases sought to deal with that observation by confining the kinds of marriage which would be recognised in English law to those which closely approximated a marriage contracted in England under English law.
  5. The great conflict of laws writer, A V Dicey, described[43] the rule which was adopted in the cases as an "instance of the principle that the rules of (so-called) private international law apply only amongst Christian states". The rule treated some, but not all, forms of marriage contracted according to other laws as either not worthy of recognition or not able to be recognised because their incidents were not compatible with English law. But the rule necessarily accepted that there were other systems of law providing for forms of marriage other than marriage of the kind for which English law provided. The rule depended upon classifying the legal systems which provided for such other forms of marriage as not being the legal system of a "Christian state".
  6. These being the bases for the nineteenth century decisions, those decisions did not then, and do not now, define the limit of the marriage power (or the divorce and matrimonial causes power) in the Constitution. Decisions like Hyde v Hyde reflect no more than the then state of development of judge-made law on the subjects of marriage and divorce and matrimonial causes. Subsequent development of both judge-made law and statute law shows this to be so.
  7. First, it was established in 1890 by Brinkley v Attorney-General[44] that, despite the frequent reference found in earlier decisions to "Christian marriage" and "marriage in Christendom" as distinct from "infidel" marriages[45], a monogamous marriage validly solemnised according to the law of Japan between "a natural born subject of the Queen ... having his domicil in Ireland" and "a subject of the empire of Japan", though not a Christian marriage, would be declared to be valid in English law. References made in earlier cases to a religious basis for the adoption of a particular definition of marriage must be seen in this light.
  8. Second, statements made in cases like Hyde v Hyde, suggesting that a potentially polygamous marriage could never be recognised in English law, were later qualified by both judge-made law and statute to the point where in both England and Australia the law now recognises polygamous marriages for many purposes[46]. "

" The social institution of marriage differs from country to country. It is not now possible (if it ever was) to confine attention to jurisdictions whose law of marriage provides only for unions between a man and a woman to the exclusion of all others, voluntarily entered into for life. Marriage law is and must be recognised now to be more complex. Some jurisdictions outside Australia permit polygamy. Some jurisdictions outside Australia, in a variety of constitutional settings, now permit marriage between same sex couples. These facts cannot be ignored or hidden."

-High Court in Commonwealth v ACT (2013)

"Other legal systems now provide for marriage between persons of the same sex. This may properly be described as being a recent development of the law of marriage in those jurisdictions. It is not useful or relevant for this Court to examine how or why this has happened. What matters is that the juristic concept of marriage (the concept to which s 51(xxi) refers) embraces such unions. They are consensual unions of the kind which has been described. The legal status of marriage, like any legal status, applies to only some persons within a jurisdiction. The boundaries of the class of persons who have that legal status are set by law and those boundaries are not immutable.When used in s 51(xxi), "marriage" is a term which includes a marriage between persons of the same sex."

- High Court in Commonwealth v ACT (2013)

"Marriage is so fundamental and so universal an institution of society that it is not easy to set limits to a power to make laws with respect to it."

-Justice Windeyer in the Marriage Act case (1962)

"I express no view on whether, theoretically, it would be within the power of the Commonwealth Parliament to make polygamy lawful in Australia. That question has absolutely no reality."

- Justice Windeyer in the Marriage Act case 

Apparently that "reality" is still real for Cory Bernardi and Bill O'Chee.

"The matters about which the Commonwealth may to-day make laws with respect to marriage are those of the kind generally considered, for comparative law and private international law, as being the subjects of a country's marriage laws."

-Justice Windeyer again 

"In the Australian Colonies ... statute law had given a civil character to the contract of marriage, while recognizing the place that religious rites might have in its solemnization. Statute law prescribed the conditions and circumstances in which men and women might enter into matrimony, the method of doing so and the consequences of incapacities, impediments and informalities."

- Justice Windeyer

His Honour set out the history of law concerning marriage. It is enlightening, stretching back to the Council of Trent (1545-1563):

"In England the marriage law was administered in the ecclesiastical courts until the middle of the nineteenth century. It was based upon canon law as it was before the Council of Trent, but modified and circumscribed by statutes. Significantly, those statutes came to be known as "Marriage Acts". This helped to mark out marriage law as a topic for English lawyers. Among such Acts, passed before 1900, were 32 Hen. VIII, c. 38 (1540), concerning pre-contracts and the degrees of consanguinity; 12 Car. II, c. 33 (1660), made permanent by 13 Car. II, c. 11, confirming marriages contracted "since the beginning of the late Troubles" according to enactments introduced during the Commonwealth; 26 Geo. II, c. 33 (1753), Lord Hardwicke's Act against clandestine marriages; 4 Geo. IV, c. 76, the Marriage Act of 1823; 5 & 6 Wm. IV, c. 54 (1835), Lord Lyndhurst's Act making marriages within the prohibited degrees void, not voidable; 6 & 7 Wm. IV, c. 85, the Marriage Act of 1836, which among other provisions permitted marriages at register offices; 19 & 20 Vict., c. 119, the Marriage and Registration Act of 1856. Then came the various Matrimonial Causes Acts. These began in 1857 with 20 & 21 Vict., c. 85, which provided, for the first time in England, for dissolution of marriage by judicial decree. (at p579)
8. In the Australian Colonies too there were Marriage Acts, before Federation. And, both in England and Australia, this statute law had given a civil character to the contract of marriage, while recognizing the place that religious rites might have in its solemnization. Statute law prescribed the conditions and circumstances in which men and women might enter into matrimony, the method of doing so and the consequences of incapacities, impediments and informalities. It thus dealt with who might be married and how. Rules concerning these matters, and with them divorce from matrimonial obligations and dissolution of the bonds of matrimony, constitute marriage law in a primary sense. It is a body of rules relating to the creation or the termination of the status of husband and wife, as distinct from the legal attributes, incidents and consequences that attach and give a substance to that status. (at p579)
9. It was suggested in argument that to restrict the power to legislate with respect to marriage to subjects that constitute marriage law in this primary sense, would be to give it a narrow application. But to think of marriage forms and ceremonies, capacities and consents as a small area for law making is to take much for granted. The statute law of marriage may seem to be in a small compass. But it embodies the results of a long process of social history, it codifies much complicated learning, it sets at rest some famous controversies. Marriage is now in law a consensual compact. But it is not dissoluble at will; and it must be celebrated by an authorized person, and he may be a clergyman. "Irregular" marriages by verba de praesenti or verba de futuro subsequente copula are no longer valid. We have no need to-day of the learning so impressively marshalled by Willes J. in Beamish v. Beamish [1861] EngR 475; (1861) 9 HLC 274 (11 ER 735) , or of the reflection of it in New South Wales in Reg. v. Roberts (1850) 1 Legge 544 . If we ever need it, it is only in such unusual circumstances as occurred in Victoria in Quick v. Quick (or O'Connell) [1953] VicLawRp 36; (1953) VLR 224 , or when an echo of battles long ago about "common law marriages" comes to us from abroad, as recently it did for Phillimore J. in Lazarewicz (otherwise Fadanelli) v. Lazarewicz (1962) P 171 . Lawyers can forget, and mostly do forget, the refined canonical learning about pre-contracts and direment and prohibitive impediments. Statute law now tells us who are capable of marrying. The history of the degrees of consanguinity and affinity does not trouble us. The days are long gone when they were, to use Pollock and Maitland's words, "enveloped in exuberant learning," "a maze of flighty fancies and misapplied logic" - when, for example, a man might not, without a dispensation, marry a relative within the seventh degree or his godfather's daughter. All this elaborate doctrine was pruned by statute in the time of Henry VIII. The circumstances may be found in the judgments of the Queen's Bench in Reg. v. Chadwick and Reg. v. St. Giles in the Fields [1847] EngR 62; (1847) 11 QB 173 (116 ER 441) . The prohibited degrees are now tabulated in the Act. These are all large tracts for law."

Having never been taught the refined canonical learning about pre-contracts and direment and prohibitive impediments, I am glad to have never done so. That is one "tradition" that I am glad has gone.

Thursday, 14 September 2017

Let’s win the Australian Marriage Postal Law Survey!

In the past when I have been asked whether we will ever have equal marriage laws in Australia, I usually said that I lived in hope.  I am old enough to remember what Ronald Reagan coined “the Evil Empire” namely the Soviet domination of Eastern Europe.  It was a certainty of life.  As Churchill said in 1947: “From Stettin in the Baltic to Trieste in the Adriatic, an iron curtain has descended on Europe”.  Despite that certainty of life, the Iron Curtain fell as did the Berlin Wall.  What seemed immovable and impermanent was in fact movable and transitory.

Much discrimination has been removed against LGBTI Australians.  There is still some discrimination there.  The pressing example was only introduced in 2004 – namely amendments to the Marriage Act at the behest of John Howard so that, for the first time, gay or lesbian people could not get married and nor could their overseas marriages be recognised.  Comments by John Howard about the survey have to be seen in the context of a consistent position by him in being opposed to marriage equality.

In 2015 my husband-to-be, Mitchell, and I contemplated getting married.  When I was awarded LGBTIQ Activist of the Year in 2015, the horizon looked bright. At that stage it looked as though in August 2015 there was every chance that equal marriage laws might pass.  Instead, we saw a joint party meeting engineered by Tony Abbott designed to obscure, obfuscate and delay the transition to equal marriage.

Our own journey was that we were not prepared to wait however many months or years it might take for us to be lawfully married in Australia.  Three weeks out from a planned business trip to the United States, we were going to spend a couple of days in Las Vegas seeing friends who lived there.  Mitch suggested to me that while we were there we should get married, which we did.  We were blessed to be surrounded by ten friends from the United States.  Our marriage was blessed by God.  We were surrounded by love.  The law in the United States recognised our marriage, as it does now in many other countries.  The chapel had internet streaming.  We were amazed to discover that 250 people watched our wedding live via streaming in four countries.

It was surreal to see even before our reception had been held, that friends of ours in Australia were madly posting online about our wedding – showing pictures and videos of our wedding and their excitement about the fact that we got married.

Sadly, since then our marriage is still not recognised in Australia.  

Hopefully the new anti-vilification laws will stop some of the terrible, bigoted comments that have been made.  Quite frankly, although I am an optimist, these comments have made me feel quite sad and down.  There are truly people who hate LGBTI people and wish to deny them any happiness.  I feel sorrow for these people and their children.  It seems that the age of enlightenment, which was as long ago as the 18th century, has passed these people by. 

I am not having a go at those who are opposed to the vote.  Each of us have to look into our hearts and make a decision based on our conscience.  There are some who have done so and feel that the only option for them is to vote no.  While I disagree with that decision, that is their right.  What I am oppose to are the bigoted, hateful and frankly at times evil statements that have been made.
Voting is not compulsory.  I urge everyone to vote, to vote yes, to send your papers back to the Australian Bureau of Statistics as quickly as possible, not to add any extra material like letter or comments (as you don’t want to invalidate the vote) and to encourage every family member and friend you know to also vote. 

Don’t assume that this vote is won.  Every vote counts.  Voting, as it is not compulsory, means that it may still be lost.  Even if it is won, it is best won by a very large participation rate and a very large majority.  We still have to get votes through both Houses of Parliament.  MPs such as Kevin Andrews and Senator Eric Abetz have said in effect that they will oppose any vote.  For those who are wavering as to which way they should vote in Parliament, politicians listen to one thing and that is numbers.  If a large number of people tell them firmly and clearly that this is the message – they will listen to that message and likely vote in our favour.  

Finally, there have been people who have criticised the Coalition and members and supporters of the LNP.  While I am highly critical of the process in which we have been forced to engage, the simple fact is that engaging in petty point scoring and anger towards the LNP, its members and supporters at this time, is extremely unhelpful.  There are many members of the LNP who support the yes vote not least people such as Malcolm Turnbull, Christopher Pyne, the old campaigner Warren Entsch and my local member Trevor Evans.  If LNP members and supporters feel vilified by this process and they decide to stay away from the vote or even worse vote no, the survey will be lost and the cause will be put back for years.  LGBTI Australians deserve better than that.

Monday, 11 September 2017

Family Court: Australian couple who went to India for surrogacy are NOT the parents

In a recent decision, three judges of the Family Court have ruled that an Australian couple who went lawfully overseas for surrogacy are not the parents of the child that was conceived and born through surrogacy.
 The impact of the decision is that many intended parents who go overseas for surrogacy are NOT the parents of their children. A possible impact is that children may not be able to obtain citizenship. 
It is an outrage that we now likely have thousands of children who live in Australia whose parents conceived them through surrogacy overseas who do not have a legal parent/child relationship – which could lead to the disinheritance of the children concerned as well as other significant unintended impacts.
This surely was not and should not be the intention of Parliament.

It is an absurdity to say that we now do not know who the child's parents are.  A child ordinarily has one or two parents. What is clear is that the intended parents are unlikely to be the parents. The court did not then say who the parents of the child were. It is unclear if the surrogate and her partner are the child's parents as a matter of Australian law- although not recognised as the child's parents under Indian law.

Where does this leave the child?

The trial judge, Justice Berman, called for urgent legislative change. Now, two years since his call for change, nothing has happened. 

This child-  and the thousands of children born overseas through surrogacy- deserves, in accordance with Australia's international obligations under the International Convention on the Rights of the Child, to have his identity protected- including the parent-child relationship that in reality he or she has with Mr and Mrs Bernieres. Children should not be left hanging about, waiting to discover who are or are not their legal parents.
The case
In the case, called Bernieres and Dhopal, Mr and Mrs Bernieres had a child through surrogacy in India.  They first went before Justice David Berman of the Family Court seeking orders that they had parental responsibility for the child and that the child live with them – and declarations or findings under the Family Law Act that they were the child’s parents.
His Honour made the orders that they had parental responsibility and that the child live with them, but declined to make the parentage declaration.
Mr Bernieres was the biological father of the child.  An egg donor was the biological mother.
The couple, who lived in Victoria, had not undertaken surrogacy in compliance with the law of Victoria :
·         Because the surrogacy was commercial, as oppose to altruistic;
·         Was not commissioned with the assistance of a Victorian registered ART provider;
·         The procedure was not carried out in Victoria.
Therefore, according to Justice Berman,  section 60HB of the Family Law Act did not apply to the case.  Section 60HB provides:
“(1)     If a court has made an order under a prescribed law of the State or Territory to the effect that:
(a)               A child is the child of one or more persons; or
(b)               Each of one or more persons is a parent of a child;
then, for the purposes of this Act, the child is the child of each of those persons.
(2)        In this section: “this Act” includes:
(a)               The standard Rules of Court; and
(b)               The related Federal Circuit Court Rules.”
Furthermore, Mr and Mrs Bernieres sought a declaration under section 69VA of the Family Law Act that they were the parents of the child.  His Honour was of the view that he could not do so because that section was not a “stand alone power but rather requires ‘parentage’ of a child to be an issue in proceedings in respect to another matter”.  His Honour further went to say that the Family Court despite being a superior court of record, did not have an inherent power to grant a parentage declaration “other than those authorised by the Act and its inherent power extends only to administer justice and prevent abuse of process”. 
His Honour noted that the circumstances surrounding the birth of the child were “not dealt with directly either by the relevant state legislation or by reference to section 60HB” and that this may be unsatisfactory.  However “the definition of a parent should [not] be extrapolated because of a legislative vacuum.”  He went on to say that the category of persons who satisfy the definition of parent while not necessary closed pursuant to section 60H of the Family Law Act and section 60HB “any perceived hiatus is a matter for legislation and not judicial interpretation”.  Therefore as the Victorian legislation did not provide for the circumstances of the child’s birth, Mr and Mrs Bernieres were not the parents of the child for the purposes of Victorian law.  His Honour said that he could “well understand the dismay of [Mr and Mrs Bernieres] that they are not able to secure for all purposes that which they fervently seek namely, recognition and a declaration of parentage”.  His Honour therefore noted the need for “urgent legislative change”. 
Quite simply, since that decision by his Honour two years ago in September 2015, there has been no legislative change nor any proposed legislative change.
The Full Court decision
The Full Court was comprised of Chief Justice Diana Bryant, Justice Stephen Strickland and Justice Judy Ryan.
Their Honours accepted the approach taken by Chief Judge Thackray in Farnell and Chambua (the Baby Gammy case) that sections 60H and 60HB of the Family Law Act overrode the general parenting presumption under the Family Law Act. 
Furthermore, their Honours agreed with the tentative position taken by Justice Ryan in Mason and Mason (2013) where her Honour said in effect that there is a scheme between State and Federal law as to who is and who is not a parent and that therefore a person is or is not a parent determined by State and Territory status of children legislation.
Therefore, the approach taken by Justice Johns in Green-Wilson and Bishop that someone is a parent under general provisions of the Family Law Act even if not a parent under the equivalent Status of Children Act is the wrong approach.
Their Honours went on to note that section 60H(1) by which the birth mother and de facto partner or husband are the parents of a child conceived through artificial conception procedure, did not apply to surrogacy situations:
            “On its plain meaning, if section 60H(1) is applied to a surrogacy arrangement…it results in the birth mother and her husband or partner being the parents, and the child not being the child of any person who provided genetic material.  Thus, neither of the commissioning parties can be the parents of the child under this subsection, and it is clearly designed to cover conventional artificial conception arrangements where the birth mother and her partner are to be the parents of the child.”
Their Honours did not consider sections 60H(2) and (3) of the Family Law Act.  As their Honours noted “judicial opinion is divided as to whether those subsections impliedly exclude” any donor or genetic material from recognition as a parent.
If the approach taken by Justice Ryan in Mason and Mason were correct, then on the face of it a donor would not be a parent under those sections.  However, in the decision of Groth and Banks, a known donor could be a parent. The parentage of known donors is therefore still unclear.
Whilst it might be thought that section 60HB only applies to domestic surrogacy arrangements, their Honours said:

            “Thus, it is plain that s60HB now specifically addresses the position of children born under surrogacy arrangements, leaving  s60H to address the status of children born by means of conventional artificial conception procedures.  Further, the plain intention of section 60HB is to leave to each of the States and Territories to regulate the status of children born under surrogacy arrangements, and for that to be recognised for the purposes of the Act.  In other words, section 60HB covers that field, leaving, as we say, section 60H to address conventional artificial conception procedures.”
As their Honours said:
            “The unfortunate result of that conclusion is that the parentage of the child here is in doubt.  There is no order made under the relevant State legislation (and nor could there be…).
            There is no question that the father is the child’s biological father, but that does not translate into him being a parent for the purposes of the Act.  Further, the mother is not even the biological mother, and thus is even less likely to be the “legal parent”.
Because of the effect of section 60HB (and perhaps section 60H) therefore a parentage declaration could not be made.
Mr and Mrs Bernieres sought to have the child considered to be a “child of the marriage” but from similar reasoning the Full Court found that the child was not a child of the marriage, in part because of the specific provision namely section 60HB.
Effect of the decision
It has been estimated that approximately 250 children a year are born to Australian intended parents via overseas surrogacy arrangements.  It is clear now that because of this decision, many Australian intended parents are not the parents of any child born overseas through surrogacy.  It is really irrelevant as to whether the surrogacy is commercial or altruistic.  Because the Family Court referred to the relevant State legislation (which is fairly consistent on this point), the effect is clear – intended parents are not parents of children born through surrogacy overseas.  It seems clear that earlier decisions that have said otherwise under the Family Law Act were incorrectly decided.
Will there be any impact on citizenship?
It is unclear as to what impact there will be on the citizenship of children conceived in the future through international surrogacy.  The Department of Immigration has taken the view that section 60HB of the Family Law Act applies only to domestic surrogacy arrangements and not international surrogacy arrangements.  This is important because section 8 of the Australian Citizenship Act says that where a person has been conceived through an artificial conception procedure, who is a parent for the purposes of Australian citizenship is determined by sections 60H and 60HB.  If the Department of Immigration and Border Protection takes the view, consistent with the Family Court, that section 60HB of the Family Law Act covers the field – then many children born outside Australia through surrogacy (with limited exceptions) would not be recognised as the child of a parent for the purposes of Australian citizenship.  Therefore the child would not be entitled to Australian citizenship and would therefore not be entitled to live in Australia.
For quite some time the Immigration Department has said that section 60HB does not apply to international surrogacy arrangements, in which case the usual test as to who is a parent, of who in society generally someone as a parent.  This is consistent with the decision in H v. Minister for Immigration (2010), a Federal Court decision – which was quite clear in saying it didn’t apply to surrogacy.
For quite some time now there has been a variance of opinion by judges of the Family Court as to whether some is or is not a parent when they have undertaken overseas surrogacy.  The Immigration Department has largely ignored the approaches taken by Family Court judges.  Whether it does so now may have significant impact on any Australian who wishes to undertake surrogacy overseas.
Are there any exceptions to the ruling as to who is a parent under the Family Law Act?
Yes, there would appear to be four exceptions in which someone can still be a parent under the Family Law Act when surrogacy is undertaken overseas.
Exception 1 – comity cases
If someone is living overseas and has undertaken surrogacy lawfully there, and is recognised as a parent there, then the general parenting presumptions under the Family Law Act do not apply and that  person should be recognised as a parent under the Family Law Act: Justice Ryan in Carlton and Bissett (2013). 
Exception 2 – a second parent adoption
Now we come to the truly Kafkaesque situation where a biological parent may not be a parent but the second (either biological or non-biological) parent will be a parent under Australian law.  In some parts of the United States, surrogacy is governed by post birth parenting orders, typically granting custody to one of the intended parents, then terminating the parental rights of the surrogate and her partner, and then a second order making the other intended parent a parent.  This second order is typically a second parent adoption order (sometimes called a stepparent adoption order). 
It is unclear from the decision in Bernieres and Dhopal whether the first parent will be recognised as a parent under Australian law.  After all, they won’t have complied with relevant State and Territory status of children legislation.  Whether the overseas order concerning the first parent will be recognised is uncertain.
However, it would appear reasonably clear that the second parent adoption order which recognises the second parent as a parent of the child, would recognise that person as a parent under the Family Law Act.  Why this is so is fairly technical.  One of the definitions of “child” under section 4 of the Family Law Act (the definition section) says:
“(a)     In Part VII [that part of the Family Law Act that deals with children and parental responsibility] includes an adopted child and a stillborn child; and
  (b)      In Subdivision E of Division 6 of that Part [the part of the Family Law Act that deals with taking children overseas improperly], means a person who is under 18 (including a person who is an adopted child).”
Further, under that section “parent” is defined as:
            “When used in Part VIII in relation to a child who has been adopted, means an adoptive parent of the child.”
Furthermore, where there might be legitimate concern about whether the adoption needs to have occurred in Australia or needs to have occurred in accordance with example with the Hague Intercountry Adoption Convention, the definition of “adopted” in that section is much wider:
            “In relation to a child, means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.”
Exception 3 – registration of US surrogacy orders
It is possible in limited circumstances (and has occurred twice) where US surrogacy orders are able to be registered under the Family Law Act.  In those cases, the order of the US court that declares the intended parents to be the parents of the child will therefore make the parents under Australian law, if the order is registered, the parents of the child in Australia.
In the two decisions, Justice Forrest of the Family Court made plain the Court’s reluctance to register US surrogacy orders when there has been commercial surrogacy.  This may be a very limited option.
Exception 4 – South Australia
Under the Family Relationships Act 1975 (SA) those intending to undertake surrogacy overseas from South Australia can obtain the approval of the South Australian Attorney-General before undergoing their journey.  The South Australian Attorney General in turn has to be guided by the State Framework for Altruistic Surrogacy and the Family Relationships Regulations – neither of which at this stage have been written even though the law has been in place since July 2015. 
If a couple (and it would only apply to couples) is able to obtain the Attorney-General’s consent, and they then pursue surrogacy successfully overseas, they can be recognised under South Australian law as the parents by obtaining a parentage declaration in the Youth Court of South Australia (which would therefore be sufficient for the purposes of section 60HB of the Family Law Act.
Historical impact of not being a parent
Before the decision in Bernieres and Dhopal, very few intended parents would go to the Family Court seeking orders declaring them to be the parents of children born overseas through surrogacy.  The reasons were simple:
·         It costs approximately $20,000 to bring such an application and depending on which part of Australia they are in, might take 6 months to resolve. If they were seen as breaking the law, the judge might refer them to authorities for investigation of commission of a criminal offence;
·         Chances were the Court would not make a declaration of parentage in their favour;
·         Given changes to passport rules in 2015, for those who underwent surrogacy in the US or Canada, then they may not need the surrogate’s written consent to any passport for the child;
·         There are usually no real impediments to the child obtaining citizenship, Medicare entitlement, Centrelink entitlements, going to hospital or the doctor or being enrolled in childcare or school;
·         There were issues in relation to wills and inheritances, superannuation and child support issues.  However, intact families generally (aside from planning their Wills) did not have an obvious imperative to go to Court to seek a declaration or orders concerning their child. 
The unknown factor as a result of this decision is the approach that will be taken by the Department of Immigration.
The call by Justice Berman for urgent legislative change is an obvious one.  The sooner it happens, the better. 

I'll be discussing this case further in a free webinar I'm speaking in this Saturday.  All welcome!