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High Court to consider who is a parent under Family Law Act

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By Di Simpson

Historically, the idea of ‘who is a parent’ for the purposes of family law has been rather straightforward. But artificial insemination, surrogacy, donor conception, DNA testing and evolving concepts of ‘family’ have made the question of parentage increasingly complex.

In April 2019, the High Court has heard an appeal in a family law case that seeks to determine ‘who is a parent’ in particular circumstances. It is a case which will have important ramifications for parents and those working in the field of family law.

A question of parentage

The case of Masson v Parsons and Ors centres around a child conceived through artificial conception. The child was conceived with a known sperm donor, a friend of the mother. He is the Appellant in the case. While the mother was in a relationship with her current partner at the time of conception, the Family Court Judge ruled that at the relevant time, she was not in a de facto relationship. That was important as it meant that her partner was not deemed to be the other parent of the child.

Neither party dispute that the Appellant has been actively involved in the child’s life since birth. The child refers to him as “daddy” and he is registered on the child’s birth certificate.

Since the birth of the child, the mother has been living with her partner and they have had a second child together (with the help of an unknown donor).

Now, the two mothers want to relocate to New Zealand with their children. They originally sought orders in the Family Court allowing the move to happen. However, this was refused by the trial judge in October 2017 who found that the Appellant was a parent under the Family Law Act and that the move would not be in the best interests of the child.

The mothers appealed this decision in the Full Court. The Full Court agreed with them that the trial judge had failed to apply the relevant provisions of the NSW Status of Children Act 1996. This would result in the Appellant being excluded as a parent of the child.

The Full Court held that the provisions of section 60H of the Family Law Act did not apply and, as a result, the state legislation would be applied (on the basis that the federal legislation “did not provide” and the State legislation would be relied upon to “fill the gap”). Under the state legislation, the circumstances of conception can result in some men not being considered a parent. As a result, the Appellant was ruled not to be a parent and the case was to be re-determined in the Family Court, by a different Judge.

High Court to decide who is a parent

The Appellant sought leave to appeal to the High Court. A Special Leave hearing occurred on 14 December 2018 focusing on the proper construction of the question of who is a parent under the Family Law Act 1975 (where that term is not broadly defined in the Act and its “ordinary” meaning would be applied).

The Commonwealth Solicitor General and the Solicitor General of Victoria also intervened in the proceedings. In addition, some of Australia’s finest constitutional and family law counsel have made their competing arguments in our nation’s highest court about who are the parents of this child.

What is significant about this case?

Beyond the family involved, this decision will be important for other people thinking about starting a family, particularly if involving artificial conception with a known donor. Each of the three adults is engaged in caring for the child – care consistent with social concepts of parenting. But in this scenario, which of the adults carry the legal obligations and responsibilities attached to being a parent? The case is an example of the law trying to “catch up” with social changes and the increasing diversity of family structures and how people become parents. It is a reminder of the importance of ensuring that all parties involved in making a decision about having a child do so from a clear and agreed framework about future roles and responsibilities.

While many of us await the decision of the High Court with interest to inform how we advise and support other clients, think of these adults – all loving and interested in the care of these children – as they grapple with their lives being on hold and the prospect, on each side, of disappointed expectations. This will be a very hard decision for someone.

Have a question about parenting matters or need to better understand your rights? The team at DDCS Lawyers are experienced in all aspects of family law. Call us on (02) 6212 7600 to arrange an appointment.