By Craig Nicol and Keleigh Robinson
Children – Surrogacy – Surrogate failed to hand over child following birth and sought that the child live with her – Interim orders made for the child to live with the intended parents – Declaration of parentage under s 69VA to be determined as a final order
In Taggart & Gowden [2026] FedCFamC2F 673 (14 May 2026) Judge Harland heard an application by intended parents in a surrogacy arrangement. The respondent was the surrogate.
The child “X” was born in 2026. Ms Taggart was the intended mother and the second applicant, Mr Miller, was the intended father and X’s biological father. The respondent, Ms Gowden, was Mr Miller’s sister and the surrogate. All three parties were Aboriginal. The parties entered into an altruistic surrogacy agreement in 2023 ([27]).
Ms Gowden sought interim orders that X live with her, raising risk issues associated with Mr Miller ([50]). The applicants sought orders that the child live with them and a parentage order in favour of Mr Miller.
Judge Harland said (from [24]):
“Mr Miller seeks an interim order declaring him X’s legal parent pursuant to s 69VA…
[25] The wording [of s 69VA] is clearly that of a final order not an interim one. I decline to make an interim order regarding parentage.”
After considering the evidence of Mr Miller’s drug and alcohol use and his mental health and Ms Gowden’s traumatic history and involvement with child protection, her Honour concluded (at [77]):
“This is a complex and sensitive matter… I am mindful that [X’s] … family has suffered intergenerational trauma…
[78] X is very young and vulnerable. He is completely reliant on the adults around him. There are too many unknowns in Ms Gowden’s household currently. …
[79] Ms Taggart is a protective factor in this matter. She is an educator surrounded by children daily. She does not have any mental health issues. She has also acted protectively when Mr Miller was psychotic and violent. I observe that many people with mental health issues are great parents. It is only relevant in so far as impacts a child’s welfare…
[80] I am satisfied that on balance X should live with Ms Taggart and Mr Miller on an interim basis.”
