April 17, 2025
At Foye Legal we pride ourselves on our commitment to equality, fairness, and justice for all. Our values are at the core of every case we take on, from the largest corporate disputes to the smallest individual claims.
One of the most fulfilling examples of our firm’s dedication to these values came when we took on a pro bono case for a father who had been wrongfully denied paid parental leave by his employer. This case is a powerful testament to our commitment to fighting for equal treatment under the law and ensuring that all workers—regardless of gender—are afforded the same rights and opportunities when it comes to family leave.
As long as men are not paid parental leave at the same rate as women, women will continue to shoulder a disproportionate burden of childcare from the lasting impacts on their career, to their ability to provide for themselves in retirement due to superannuation that is much less than men’s.
The father, whom we will refer to as “John” to maintain confidentiality, was employed by a government department. John was the biological father and primary caregiver of twins who were born overseas through a surrogacy arrangement. Prior to the birth of his children, John made a request to his employer for paid parental leave. John assumed he would be entitled to paid parental leave, just as mothers were afforded.
While the employer had an established policy for paid maternity leave, John was told that he would be required to provide an undertaking that he would apply for a Parentage Order from the Supreme Court of NSW, under the Surrogacy Act 2010 (NSW). The employer did not accept that John fell under the existing policy to provide paid parental leave, despite being the biological parent of his twins, and the primary caregiver.
Feeling bewildered and frustrated, John began to question whether he was being discriminated against for simply being a father instead of a mother.
At Foye Legal, we were concerned by the discrimination John was facing. As a father, he had every right to bond with his child and to take time off without fearing financial hardship. After all, parental leave policies should support all parents, regardless of gender.
Discrimination is when you are treated less favourably than somebody else because of your:
Indirect discrimination is when a rule or requirement that applies to everybody unfairly disadvantages people who possess a characteristic protected by law (such as the above list), and is not reasonable in the circumstances.
We knew that this case was about more than just one individual—it was about ensuring that fathers, like mothers, were treated equally in the workplace and had the ability to balance work and family without facing undue financial strain.
When we were unable to negotiate an outcome with the employer in the Anti-Discrimination Board, we commenced proceedings in the NSW Civil and Administrative Tribunal.
We were unsuccessful at first instance, so proceeded to an appeal, however were still unsuccessful. The tribunal did not accept that John had the same right to 14 weeks paid parental leave as a father of children born by surrogacy, than a birth mother or primary carer, as he could not meet the requirements of the Surrogacy Act 2010 (NSW).
On 16 June 2021, this government department expanded their employees’ entitlements to paid parental leave, and provided an entitlement to 14 weeks’ Paid Parental Leave for employees who have primary responsibility for the care of the child (regardless of sex). However this expansion continued to deny the entitlement to 14 weeks paid parental leave to John, due to the unhelpful application of the Surrogacy Act 2010 (NSW).
Under the Surrogacy Act 2010 (NSW), when a child is born by surrogate, the surrogate mother is recognised as the birth mother of the child, and if she has a husband / partner, they’re recognised as the child’s other parent. This requires the intended parents to make an application to the Supreme Court of NSW for a parentage order following the birth.
The process for applying for a parentage order from the Supreme Court is costly and there are both mandatory and discretionary preconditions which will be applied by the courts.
One of those conditions is that such arrangements are altruistic in nature and that the surrogate and intended parent obtains independent legal advice.
A key takeaway from this case is that when considering surrogacy, it is important to speak to a lawyer about the options available to you to transfer parentage after the child is born as there are many legal ramifications if a parentage order is not capable of being issued by the Supreme Court.
If you are intending to become a surrogate or an intended parent of a surrogacy arrangement, contact our family law team early on.
Send us your enquiry here or give us a call on 1800 996 994
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3/1 MEMORIAL DRIVE SHELLHARBOUR CITY NSW 2529
LEVEL 3, 63 MARKET STREET WOLLONGONG NSW 2500
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3/1 MEMORIAL DRIVE SHELLHARBOUR CITY NSW 2529
LEVEL 3, 63 MARKET STREET WOLLONGONG NSW 2500
contact us to make an appointment
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