Case law

Masson v Parsons & Anor [2019] HCA

 

Court: High Court

Judges: Kiefel CJ, Bell J, Gageler J, Keane J, Nettle J, Gordon J, Edelman J

Facts: In 2006, the appellant, Mr Masson, provided semen to the first respondent, Ms Parsons, for her to conceive a child by way of artificial insemination. At the time of conception, he believed that he was fathering the child and would thus support and care for her. His name was entered on the child's birth certificate as her father. Although the child lived with the first respondent and later also her de facto partner ("the second respondent"), the appellant continued to have an ongoing role in the child's financial support, health, education and general welfare. He was described by the primary judge as enjoying an extremely close and secure attachment relationship with the child. By 2015, the first and second respondents had resolved to move overseas and take the child with them. The appellant responded by instituting proceedings in the Family Court of Australia for orders under the Family Law Act, among other things, conferring shared parental responsibility between himself and the first and second respondents. Section 60H of the Act provides rules in respect of the parentage of children born of artificial conception procedures.

Reasoning: The primary judge in the first hearing in the Family Court accepted that the appellant did not qualify as parent under s60H but held that, because that provision expanded rather than restricted the categories of people who could be parents, and because the appellant was a parent within the ordinary meaning of the word, the appellant was a parent of the child for the purposes of the Act.

 

On appeal, the Full Court of the Family Court agreed that s 60H was not exhaustive, but held that, because the matter was within federal jurisdiction, s 79(1) of the Judiciary Act 1903 (Cth) picked up and applied s 14 of the Status of Children Act 1996 (NSW), under which the appellant was irrebuttably presumed not to be the child's parent.

High Court unanimously allowed an appeal from a judgment of the Full Court of the Family Court of Australia concerning parenting orders made under Pt VII of the Family Law Act 1975 (Cth) ("the Act")

 

A majority of the High Court held that s 79(1) of the Judiciary Act did not pick up and apply ss 14(2) and 14(4) of the Status of Children Act because the presumption in ss 14(2) and 14(4) operated as a rule of law, determinative of parental status, independently of anything done by a court or other tribunal, in contrast to provisions regulating the exercise of jurisdiction. The majority also held that, even if ss 14(2) and 14(4) were provisions regulating the exercise of State jurisdiction, they could not be picked up by s 79(1) of the Judiciary Act, because the Act had "otherwise provided" within the meaning of s 79(1). Further, because the tests for contrariety under s 79(1) of the Judiciary Act and s 109 of the Constitution were identical, ss 14(2) and 14(4) did not form a part of the single composite body of law operating throughout the Commonwealth and as such apply of their own force in federal jurisdiction as a valid law of New South Wales. Finally, the majority held that no reason had been shown to doubt the primary judge's conclusion that the appellant was a parent of the child.

For the full judgement go to: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCATrans//2019/81.html

 

 

Clarence & Crisp [2016] FamCAFC 157

 

Court: Family Court

Judge: Thackray J, Ainslie-Wallace J, Aldridge J

Facts:  The birth mother, Ms Clarence (the Applicant) and her former partner, Ms Crisp (the Respondent) commenced a de facto relationship in 2004 and separated in 2011. Ms Clarence argued that Ms Crisp had left their home in March 2011, 4 months before the IVF procedure where Ms Clarence became pregnant with an egg donated to her by Ms Crisp and an anonymous sperm donor. Ms Crisp argued that the separation date was one month after the date of conception. Ms Clarence sought sole parental rights over the 5-year-old child and Ms Crisp sought joint rights. The court relied on 850 text messages between the parties whom expressed their love on occasions, but with increasing frequency leading up to 11 July 2011, the date of implantation of Ms Crisp’s eggs. Whilst the parties did not live together at the date of conception, the Court found they were still in a de facto relationship and that Ms Crisp was therefore a parent of the child.

Reasoning:  The presiding judge found that “If the parties were in a de facto relationship on that day [of conception] then they were both the child’s ‘parents’ for the purposes of [s 60H of] the Family Law Act 1975 … ”.

The court ordered that the child live with the Applicant and spend time with the Respondent. Ms Clarence appealed the decision to the Full Court alleging that Berman J had erred in law. The Full Court upheld the original decision and costs were awarded to Ms Crisp.

For the full judgement go to:  http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCAFC/2016/157

 

 

Chancellor & McCoy [2016] FCCA 53

 

Court: Federal Circuit Court

Judge: Turner J

Facts: Ms McCoy and Ms Chancellor were in a de facto relationship for 27 years and had no children. The parties kept their finances very separate (they bought and sold properties in their own names and were responsible for their own debts). The court found that Ms McCoy acquired a property in her name the year after the relationship began; that the parties lived in and renovated that property, that Ms McCoy funded the renovations, that Ms Chancellor assisted with the labour and paid “$100 to $120 a fortnight to Ms McCoy” during “most of the relationship”. Ms Chancellor then purchased a property in her own name. Renovations were also undertaken on that property, which were funded by Ms Chancellor, while Ms McCoy assisted with labour.

Ms Chancellor argued that this was a long de facto relationship during which time both parties contributed to the large property pool and therefore it was just and equitable for the court to consider a property division. Ms McCoy argued that although the parties were in a long de facto relationship the parties’ finances were kept separate with each party accumulating their own financial pool and therefore it would not be just and equitable for the court to consider a property division.

Reasoning: The court found that it was not just and equitable to make an order altering property interests for a de facto couple that had been in a relationship for 27 years. The court said that the parties for 27 years “conducted their affairs in such a way that neither party would or could have acquired an interest in the property owned by the other” in that there was no intermingling of finances; each acquired property in their own name, remained responsible for their own debts and was able to use their wages as they chose without accounting to the other party; neither party provided for the other in the event of their death and at separation neither was aware of the assets the other had acquired. Ms Chancellor’s application for a property order was dismissed.

For the full judgement go to: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2016/53.html 

 

Freeman & Bowman [2015] FamCA 141

 

Court: Family Court

Judge: Hogan J

Facts: Ms Freeman and Ms Bowman were in a relationship and lived together for almost 2 years. During this time, baby B was born to Ms Bowman as a result of artificial insemination with a known donor. Ms Freeman sought a declaration that she was a parent of baby B pursuant to Section 60H of the Family Law Act 1975 (Cth), on the basis that she was in a de facto relationship with Ms Bowman at the time of conception and that she consented to the artificial conception procedure. Ms Bowman opposed the application arguing that Ms Freeman did not consent to the artificial conception.

Reasoning: The court found that Ms Bowman used language in communications with the donor such as “we”, meaning Ms Freeman, and that she no doubt intended, or at least highly likely intended to convey that she “was part of a relationship at the time she was seeking the provision of genetic material”.

The court also found that there was evidence which established the existence of a de facto relationship, given Ms Freeman had provided financial support to Ms Bowman, and after his birth, to baby B. They held their relationship out in public before and after baby B’s birth, as de facto partners, and the child was a part of this. The court was satisfied that Ms Freeman consented to the artificial conception procedure and that at the time of conception that she and Ms Bowman were in a de facto relationship. As a result, pursuant to section 60(H)(2) baby B is a child of Ms Freeman.

For the full judgement go to: ttps://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2015/141.html

 

Gear v Faraday [2015] FCCA 3165

 

Court: Federal Circuit Court

Judge: Henderson J

Facts: Two homosexual couples (one male, one female) discuss conception of a child through IVF. They are successful, but immediately after the birth of the child, difficulties between the parties ensue. The child spent time with both sets of parents, and the female set expressed fear and anxiety at the constant invasion of the fathers into their lives. The mothers requested that they be declared parents under Section 60H of the Family Law Act 1975 (Cth), concerning conception artificially. There was a high level of conflict between the parties, and a huge level of mistrust between the mothers and the fathers. The litigation increased the mothers’ anxiety, which was rubbing off on X.  

Reasoning: The court acknowledged that the definition of parent in the law is one in which biology is the determining factor unless specifically excluded by law. And by law, under Section 60H of the Family Law Act 1975, the mother, artificially inseminated, and her partner are the parent and other intended parent, and not the biological father who donated the sperm. Issues of biology are not determinative of who are X’s legal parents for the purposes of the Act. Section 60H specifically provides for a declaration that a non-biological person may be a legal parent of a child as is the case for the women. Next, to determine parenting orders, under Section 60CC of the Family Law Act 1975, the best interest of the child is determined by parenting, not parenthood, and the quality of that parenting by those requesting orders. Under Section 61DA(1) of the Family Law Act 1975, the courts should presume that it is in the best interests of a child for the parents to have equal shared parental responsibility. In this matter that means the mothers are X’s parents and not Mr Gear. As far as parenting time, the court agreed to maintain the current time with the dads, and increase it at a snail’s pace over several years to engender trust between the parties.

For the full judgement go to:  http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2015/3165  

 

Regan v Walsh [2014] FCCA 2535

 

Court: Federal Circuit Court


Judge: Coker J

Facts: The parties agreed that they knew each other from early 2005 and that, at times, they lived together throughout that period. They agreed that they shared sexual relations, but they disagreed as to the nature of their relationship. The applicant’s position was that their relationship was to the exclusion of all others and that it was one of a genuine domestic relationship. The respondent, on the other hand, described the relationship as one of “friends with benefits” and did not concede that there was ever a de facto relationship between the parties. The relationship was not found to be de facto in nature. Mr. Regan’s application was dismissed and it was held that the Court could not make orders altering the parties’ property ownership.

Reasoning: Section 4AA of the Family Law Act 1975 (Cth) is relevant, which defines a de facto relationship as having regard to all the circumstances of their relationship. Section 4AA(1)(c) states there must be sufficient evidence to satisfy the court of a de facto relationship before any property distribution can be examined. Under Section 4AA(2) the circumstances include: (a) the duration of the relationship; (b) the nature and extent of their common residence; (c) whether a sexual relationship exists; (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (e) the ownership, use and acquisition of their property; (f) the degree of mutual commitment to a shared life; (g) whether the relationship is or was registered under a prescribed law of a state or territory as a prescribed kind of relationship; (h) the care and support of children; and (i) the reputation and public aspects of the relationship. No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship. Given the evidence and testimony presented in court, the judge was not satisfied that there was an outward perception available to the world at large of a relationship of a genuine domestic nature.

For the full judgement go to:  http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2014/2535

 

LU v Registrar of Births Deaths and Marriages (No 2) [2013] NSWDC 123

 

Court: District Court of NSW


Judge: Taylor SC DCJ

Facts: From about 1993 until early 2003 the birth mother and her partner lived together as de facto partners. 1999, they agreed to have a child and they chose a known donor. The birth mother told the donor that he would be known to the child, kept informed and be involved in the child's life but that the mothers would be the child's parents, would be financially responsible for the child and would make the significant decisions in the child's life. The donor agreed.

They tried artificial insemination at home but this was not successful. The donor deposited some sperm at a hospital and via a fertilization procedure at Royal Prince Alfred Hospital fertility program the birth-mother became pregnant. The child was born in 2002. Both the birth mother’s partner and the donor were present at the birth of the child.

The birth mother and father both signed the child's birth certificate forms and as a result, the mother and the father became registered on the birth certificate. The birth certificate records the mother and the father as "informants".

Around five months after the birth of the child, the birth mother and her partner separated. There was said to be a separation agreement between the birth mother and her partner, and the partner provided financial assistance for the child. The father contributed financial assistance for a medical operation on the child but otherwise was not asked for and did not provide any significant financial assistance. The birth mother’s ex-partner spends time with the child several times a week and is consulted on major decisions regarding the child. The father has been involved in the child's care, has had regular contact with her, has formed a strong bond with her, regards her as his daughter and is referred to by the child as "dad". The child is involved with the family of the birth mother’s ex-partner and the extended family and friends of the father.

There were also Family Court proceedings involving the mother, the birth mother’s ex-partner, and the father, relating to the child.

The birth mother’s ex-partner commenced proceedings against the Registrar of Births, Deaths & Marriages NSW and the father to have the father's name removed from the child's birth certificate and to have her name inserted. The Registrar could only make these changes without court orders if the father consented. The father did not provide his consent to the Registrar. The birth-mother however, did provide her consent.

Reasoning:  Taylor DCJ considered the decision of Judge Walmsley SC of this court in AA v Registrar of Births, Deaths and Marriages and BB [2011] NSWDC 100 where an order was made to the Registrar to remove the father’s name from a child’s birth certificate, and replace it with the non-birth mother’s name. In this case, Taylor DCJ was of the view that he was not bound to follow the decision in AA and that the court was empowered to authorize the Registrar to remove the father's name from the child's birth registration, but not to order the Registrar to do so. The court found that because the father became the biological father of the child by means of fertilization procedure, and he was not the husband or de facto partner of the birth mother at the time, the father is presumed not to be the father of the child according to s 14(2) of the Status of Children Act 1996 (NSW). As a result, the Registrar is authorised to remove from the child's birth registration any particular that identifies the father as the father of the child, pursuant to cl 17(4)(b)(i) of Sch 3 of the Births, Deaths and Marriages Registration Act 1995. Pursuant to s 19(1)(b) and cl 17(2) of the Registration Act, the Registrar is then ordered to include the birth mother’s ex-partner on the child's birth certificate.

For the full judgment go to: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWDC/2013/123.html

 

Groth v Banks [2013] FamCA 430

 

Court: Family Court

Judge: Cronin J

Facts:  A child was conceived via artificial conception with the applicant’s genetic material and born to a single woman, who asserted that the applicant was not a parent based on his status purely as a donor and upon Section 15 of the Status of Children Act 1974 (Vic), creating an irrebuttable presumption of law that if a woman becomes pregnant based on artificial conception, the man who produced the genetic material shall not be considered the father.

Reasoning: The definition in the Act, located in Section 4(1), does not help if the child is not adopted. Because the Act did not include a comprehensive definition, it should be given its ordinary dictionary meaning. The fact that a child has two parents who are his or her biological donors is evident throughout the language of the Act. Biology is the determining factor unless specifically excluded by law. The applicant is the biological progenitor of the child and set about a course of conduct with the intent to father a child. Thus, he is a parent, and the parties would share equal parental responsibility, living with the mother and spending graduating periods of time with the father.

For the full judgement go to:  http://www.austlii.edu.au/au/cases/cth/FamCA/2013/430.html

 

Packer v Irwin [2013] FCCA 658

 

Court: Federal Circuit Court

Judge: Turner J

Facts: Two children were born to lesbian mothers, whose sperm donor for both was known. The lesbian couple split, and one mother moved in with a new partner, letting contact with her children cease. She later began court proceedings requesting visitation. The father, close to the girls, intervened as he had been actively involved in their welfare. The court ordered that the girls live with the other mother and spend time with the mother who left, with the consent of the children. Both mothers were to be named on the birth certificate.

Reasoning: Evidence from the children was given that the relationship with Ms. Packer was tenuous at best; however, the best interest of the children was still paramount. Based on prior Family Court rulings, a sperm donor not named on the birth certificate could not be legally considered a parent. However, the relationship between the children and their father was stronger than that of the non-biological mother, and so the children essentially had, in effect, three parents.

For the full judgement go to:  http://www.austlii.edu.au/au/cases/cth/FCCA/2013/658.html

 

Reiby v Meadowbank [2013] FCCA 2040

 

Court: Federal Circuit Court

Judge: Small J

Facts: The parties, a lesbian couple and male sperm donor, entered into an agreement concerning the time spent with each parent. The court ignored said agreement, stating that the statutory criteria must overrule an intention of the parties. The court ordered that the couple have shared parental responsibility between them (but not with him) and the child spend daytime contact with him, graduating upwards.

Reasoning: The law relating to who will have parenting responsibility for the child, where she will live, etc. is set out in Part VII of the Family Law Act 1975 (Cth). It was not disputed by the father that the women were in a de facto relationship pursuant to the Family Law Act 1975, Section 60H, at the time the child was conceived. Therefore, the women are the child’s parents at law, and the sperm donor is not.

For the full judgement go to:  https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2018/454.html

Dent v Rees [2012] FMCAfam 1303

 

Court: Federal Magistrates Court

Judge: Terry FM

Facts: Two lesbians had been in a relationship for 17 years and could not agree on parenting orders or the birth certificates of the children. All three of their children were conceived via artificial conception. One child was the applicant’s biological child, the other two were the respondent’s. The had used the same anonymous donor, and thus the mothers were each the parents of the children. At the time of the birth of the children, both parents could not be on the birth certificates. One child has special needs. The court allowed the applicant mother to add her name to the birth certificates of the children (and vice versa for respondent).

Reasoning: Clause 17(4)(a) of Part 4 of Schedule 3 of the Births, Deaths and Marriages Registration Act 1995 (NSW) states that a woman presumed to be a parent can apply to have her named added to the birth certificate, but the Registrar can’t do it unless the birth mother consents or there is a court order. Section 19(2) of the Act allows any court that makes a finding about a child’s parents to order registration of the birth or inclusion of the parents in the Register.

For the full judgement go to: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FMCAfam/2012/1303.html

 

Connors v Taylor [2012] FamCA 207

 

Court: Family Court

Judge: Watts J

Facts:  Two lesbians in a committed relationship for 11.5 years jointly planned and created a family, with each woman birthing a child, about 13 months apart at the time of the decision. The respondent began a relationship with another woman, terminating the relationship with applicant. The women wished for a parenting arrangement, with the Court considering the need to maximise time the children spent with each other, protection from psychological harm from separation of their primary parent, and minimising the frequency of changeovers.

Reasoning: Interpreting the amendments of Section 60H(1)(c) of the Family Law Act 1975 (Cth), and Faulks DCJ’s reasoning in Maurice v Barry, the children in this case is the child of their non-biological co-mother respectively, and each non-biological co-mother is that child’s parent. Further, Section 60CA of the Family Law Act 1975 provides that when the Court makes a parenting order, the best interests of the child is the paramount consideration. After considering the sibling relationships, relationships between each child and the parents (including allegations of favouritism to the eldest child by respondent), the court awarded shared parental responsibility of each of the children if the interpretation that each woman is a parent is correct. Therefore, in light of the circumstances and the best interest of the child, the court can award equal parenting time to each parent.

For the full judgement go to:   http://www.austlii.edu.au/au/cases/cth/FamCA/2012/207.html

 

AA v Registrar of Births, Deaths and Marriages and BB [2011] NSWDC 100

 

Court: District Court

Judge: Walmsley SCJ

Facts: Lesbian couple (AA and AC) sought a sperm donor (BB). BB donated via fertilisation procedure. BB was heavily involved in the pregnancy and birth of the child. Shortly after the birth, the relationship deteriorated. BB filed with the Family Court. BB’s name was added to the birth certificate. AA and AC broke up later. Legislation had been amended to allow two women to be listed as the parents. Only two people could be parents, unless BB consented to removal of his name. He refused. AA sought to have her name added to the birth certificate of the child. The Court agreed.

Reasoning:  Under the Status of Children Act 1996 (NSW), the child was conceived through a fertilisation procedure; so, BB is presumed to not be the child’s parent, but AA is. Section 14 of the Act: when a woman who is the partner of another woman has undergone a fertilization procedure and becomes pregnant, the other woman is presumed to be a parent of any child born as a result of the pregnancy. If a woman becomes pregnant by means of a fertilization procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy when there is a conflict as to the parentage presumptions. The presumption for a father’s parentage is overruled by the irrebuttable presumption of the female partner presumption. (See: Status of Children Act 1996, Section 14, New South Wales Consolidated Acts.)

For the full judgement go to:   http://www.austlii.edu.au/au/cases/nsw/NSWDC/2011/100.html

 

Lusito v Lusito [2011] FMCAfam 55

Court: Federal Magistrates Court  

Judge: Purdon-Sully FM

Facts: Lesbian partners had a child together after the older woman repeatedly requested the younger woman to have a child on her behalf with the use of an anonymous sperm donor. The law, during litigation, changed to allow recognition of a non-biological mother as the parent on a child’s birth certificate. The younger, biological mother opposed. The Court held that the co-mother was deemed a parent.

Reasoning: The threshold issue in Section 60H of the Family Law Act 1975 (Cth) had been met, as one mother is the biological mother the child, at the time of conception, each was living a de facto relationship with the other intended parent, and both parties consented to the carrying out of an artificial conception procedure. The court also found the co-mother was a parent under the law, as it is clear the intention of the legislature was to make non-biological persons who meet the relevant criteria of Section 60H to be treated as a parent. 

For the full judgement go to: http://www.austlii.edu.au/au/cases/cth/FMCAfam/2011/55.html

 

Maurice v Barry (2010) 44 Fam LR 62

 

Court: Family Court

Judge: Faulks DCJ

Facts: Barry was the biological mother of two children, born after artificial conception. She was in a relationship with her female partner, Maurice. Each sought “parental responsibility” under the Family Law Act of 1975 (Cth).

Reasoning: The court looked at Section 60H(1), stating that if a child is born to a woman from artificial conception while the woman is the de facto partner of another person, and the other parent consented to the conception, then the child is the child of the birth mother and her partner. The judge was satisfied the parents met this qualification. Each parent retains equal shared parental responsibility for the child unless there is an order of the court to the contrary. There was still a question of whether the “partner” was a parent for the remainder of the provisions of the Act. The Full Court of the Family Court in Aldridge v Keaton [2009] FamCAFC 229 considered this issue and determined that the legislation intended for the partners should have the same rights as the biological parents did although the legislation wasn’t entirely clear. Faulks DCJ in Maurice, however, determined otherwise, and that the legislation implied that the partner is the other parent for purposes of the Act.

For the full judgement go to:   http://www.austlii.edu.au/au/cases/cth/FamCA/2010/687.html

 

Simpson v Brockmann [2010] FamCAFC 37

 

Court: Family Court

Judges: Coleman, Warnick, May JJ

Facts: This case concerns parenting arrangements for [B] (...now 10 years of age) and [S] (...now 11 years of age). [B’s] biological mother is the respondent, [Ms. Brockmann] and [S’s] biological mother is the applicant, [Ms. Simpson]. [Ms. Simpson] and [Ms. Brockmann] were in a partnership at the time of conception and birth of the children. Both women were artificially inseminated by the same anonymous sperm donor. The parties later separated, and then parenting orders that were in place became unworkable after Ms. Brockman moved to Sydney. The lower court made orders that the child B continued to live with her mother, who was not required to move from Sydney, and the child S continued to live with his mother in Northern New South Wales. Each child was to spend some time in the household of the other child and that child’s mother. At the time this order was pronounced, the law had not been changed to allow each woman to be considered the child of their non-biological offspring. Ms. Simpson appealed, requesting the children live primarily with her and spend appropriate time with Ms. Brockmann where she lives, as it changes, and for the amended law to be applied. The appeal was dismissed.

Reasoning: The right to appeal under Section 24 of the Federal Court of Australia Act 1976 (Cth) is an appeal and not a rehearing. Thus, the court must consider and apply the law as it stood at the date of the hearing at the first instance, and not at the date of the appeal. As for the factors concerning the best interest of the child, the appellate court found that the evidence showed no error in the lower court’s rationale, or there was no issue raised before the court at the trial level and could not now be handled solely upon appeal.

For the full judgement go to:  http://www.austlii.edu.au/au/cases/cth/FamCAFC/2010/37.html

 

Halifax v Fabian [2010] FamCA 1212

 

Court: Family Court

Judge: Cronin J

Facts: Two children born by artificial conception with two mothers who were in a lesbian relationship that broke down irretrievably. The mothers are to have shared parental responsibility for the children. The facts of this case highlight the dilemma of the clash between freedom of movement of adults and the welfare of children.

Reasoning: The best interests of the children remain paramount, but are not the only consideration, particularly when considering the relocation of the adult. The amendment to Section 60H of the Family Law Act 1975 (Cth) referred to children born before November 2008. Section 60H(1) provides that where a child is born to a woman as a result of an artificial conception procedure while a de facto partner of another person, and that other person has consented to the procedure, the child is a child of both. While the reference to the consent of the procedure is vague, Section 60H(5) places the onus to refute the consent on the person asserting no such consent. None of that has been suggested here. In this case, none of the constituent elements was disputed. Thus, each of Ms. Halifax and Ms. Fabian is a parent of both children. Given the distance and poor communication, it is not in the best interest of the child to have equal time or even substantial time spent with the other parent.

For the full judgement go to: http://www.austlii.edu.au/au/cases/cth/FamCA/2010/1212.html

 

Wilson v Roberts (No 2) [2010] FamCA 734

 

Court: Family Court

Judge: Dessau J

Facts: A woman gave birth to child (E), who has since lived with his mother and her partner; E’s biological father and his partner wish to spend substantial time with him, against the mothers’ wishes. The women seek sole parental responsibility for E and the right to move overseas; men seek shared parental responsibility and to not move overseas. The men had been involved in E’s life since his birth, and had cared for him at least 2 full days’ per week and seeing him one other evening until the parties disagreed about the time E spent with each other.

Reasoning: Section 60H of the Family Law Act 1975 (Cth) was repealed and replaced by a new Section 60H, by the Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008. It relates to children born as a result of artificial insemination. E was born before the amendment commenced on 21 November 2008, but it is clear that the amendment relates to a child born before that date. Importantly, a person who is not a parent may still apply for a parenting order, if “a person concerned with the care, welfare or development of the child” (see Section 65 of the Act). It is clear that E cannot be successfully parented in an equal division of parenting roles between the four adults. The reality for E is that his mothers are his primary attachment figures and they should be responsible for making the important decisions about him. The men should be involved in his life; however, the women should not be restricted from moving overseas.

For the full judgement go to:  http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2010/734.html

 

Aldridge v Keaton [2009] FamCAFC 229

 

Court: Family Court

Judges: Bryant CJ, Boland J and Crisford J

Facts: The issue was whether someone with no biological connection to the child could receive parenting orders. The parties had been in an intimate sexual relationship for some time and began cohabitating shortly before the child’s birth. The child had been conceived artificially. The lower court determined that at the time of conception, the parties were not in a de facto relationship and denied the applicant’s request to be deemed a parent and receive parenting orders. The judge gave the mother sole parental responsibility, but created an order with some time to be spent between applicant and the child. The mother appeals all of the judgment except the order of sole parental responsibility.

Reasoning: The appeal was dismissed – the lower court considered the child’s warm relationship with the applicant and determined it was in the child’s best interest to spend time with the applicant. A two-step approach should be taken when dealing with an application for parenting orders with a non-biological party: 1) is the applicant a person concerned with the care, welfare and development of the child, and if so, 2) what order should be made in the best interest of the child. The lower court did not err in its determination of parenting orders for the applicant.

For the full judgement go to:  http://www.austlii.edu.au/au/cases/cth/FamCAFC/2009/229.html

 

Mathers v Mathers [2008] FamCA 856

 

Court: Family Court

Judge: Murphy J

Facts: Two children were born of a lesbian relationship, with respective biological mothers, each conceived via artificial insemination by an anonymous donor. The children were planned and the mothers wished to raise them as a family – with each party being the other’s co-parent. Each party has filed identical affidavits and seek parenting orders from the court.

Reasoning: Each of the mothers is the biological mother of their respective child. Each is registered as such on the child’s birth certificate. Each is, then, I conclude, a parent of their respective child for the purposes of the Family Law Act 1975 (Cth) and, specifically, in respect of the application of Section 65G of said Act. It is in the best interests of the children that they live with both applicant and respondent; however, parental responsibility is more problematic. The children have, under the Act, only one parent – their respective mothers. However, the Act makes a provision for two or more persons to share parental responsibility. Therefore, if it is what the parties intend, it is in the best interests of the parties to both assume parental responsibility.

For the full judgement go to: http://www.austlii.edu.au/au/cases/cth/FamCA/2008/856.html

 

Re Mark (2003) 31 Fam LR 162

 

Court: Family Court

Judge: Brown J

Facts: The child, a year old, has been living with two men who each consider the child their son, and who have lived together since 1992. The child was born via surrogate, a woman in the US living with her husband with an anonymous donor egg and the sperm of Mr. X (one of the men). The surrogacy was made via surrogate agreement in California.

Reasoning: A man who had provided his genetic material for the express purpose of fathering a child that he would parent was a parent in the ordinary meaning of the word and thus a parent for the purpose of the Family Law Act 1975 (Cth). The statutory definition in Section 60H of the Family Law Act 1975 is not an exhaustive definition of parent – rather, it enlarges instead of restricts the category of people who may be regarded as parents. In deciding whether to make a particular parenting order, the court must regard Mark’s best interests as the paramount, but not sole, consideration. In determining what is in his best interests, it must consider the matters set out in Section 68F(2) of the Family Law Act 1975. Those provisions require the court to consider not only the child’s relationship with parents, but with other people. Thus, Section 68F(2)(b) requires the court to consider the nature of the relationship with each of the child’s parents and with other persons, sub-section (c) requires the court to consider the likely effect of any change in the child’s circumstances, including separation from either parent or any other person with whom the child has been living, and sub-section (e) requires the court to consider the capacity of each parent or any other person to provide for the needs of the child, including emotional and intellectual needs. Because both Mr. X and Mr. Y have been concerned for the care and wellbeing of the child, they shall both have parental responsibility for the child.

For the full judgement go to:   http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2003/822.html

 

ND v BM [2003] FamCA 469; (2003) 31 Fam LR 22

 

Court: Family Court

Judge: Kay J

Facts: Two lesbians in a relationship sought a sperm donor. The birth mother told the donor that she wanted a child and was looking for a sperm donor. He volunteered, and at meetings later with the mother’s partner, each agreed that he would not have any legal rights to the child. Indeed, the child would not be aware of his status. Conception occurred via vaginal intercourse. After the birth of the child, father executed a handwritten agreement pursuant to the request of the mothers, stating he had no legal rights, and if the mothers separated, the partner would still support the child. Later, the mother requested the Court to find the father was liable for child support; based on a DNA test, he signed consent orders acknowledging his liability to support the child, without legal representation. The donor later appealed, and the appeal was dismissed.

Reasoning: Leave to appeal a child support case requires the applicant to show error in the lower court. The definition of parent in Section 5 of the Child Support (Assessment) Act 1989 (Cth) is expansive, not inclusive. A “parent” is the father or mother of the child or the progenitor of a child, (Tobin v Tobin [1999] FamCA 446; (1999) FLC 92-848). Only in adoption and artificial conception does the law alter the default position that the biological parent is treated in law as the parent (Re B and J [1996] FLC 92-716; (1996) 21 Fam LR 186). Agreements between the parties can’t be used as a barrier to the court’s making an otherwise just and equitable order. Parents cannot waive the right to seek child support from another parent.

For the full judgement go to:  http://www.austlii.edu.au/au/cases/cth/FamCA/2003/469.html

 

Re Patrick [2002] FamCA 193

Court: Family Court

Judge: Guest J

Facts: The father entered into an agreement with the birth mother and her partner to provide sperm to artificially inseminate the birth mother. After failed negotiations regarding parenting roles of each party, the mothers unilaterally determined to cut father out and went into hiding. Orders were entered allowing the father to have graduating contact; the relationship between parties continued to deteriorate. After protracted litigation, the Court determined that the father could not be considered a father for purposes of the Family Law Act 1975 (Cth).

Reasoning: There is no decision in Australia that specifically addressed the issue of whether a sperm donor, whether anonymous or known, is a “parent” within the meaning of the Act, though the Full Court has held that a sperm donor for a lesbian couple is not a “parent” for the purposes of the Child Support (Assessment) Act 1989 (Cth). Re B and J [1996] FLC 92-716; (1996) 21 Fam LR 186 (per Fogarty J). The effect of Section 60H(3) of the Act is that where under a prescribed law of a state or territory the child is a child of a man, the child is also to be regarded as his child under the Family Law Act 1975. Thus a child is to be regarded as the child of the biological father and the biological father a “parent” only if there is a specific state or territory law that expressly confers that status on a sperm donor for the purposes of the Act. There are no prescribed laws on any state or territory to that effect. Family Law Act 1975 Section 60H, Status of Children Act 1974 (Vic) Section 10F. Given the father’s active role in Patrick’s conception and his ongoing efforts to build a relationship with his son, it is difficult to understand that he is excluded, for the purposes of the Act, from being properly known as a “parent” of Patrick, but merely to have jurisdictional status in the Family Court as “...any other persons” concerned with Patrick’s welfare. The father was not considered a legal parent of Patrick.

For the full judgement go to:    http://www.austlii.edu.au/au/cases/cth/FamCA/2002/193.html 

 

Re B and J [1996] FLC 92-716; (1996) 21 Fam LR 186

 

Court: Family Court

Judge: Fogarty J

Facts: The biological mother was compelled by the Department of Social Security to pursue the sperm donor of her two children for child support. The donor petitioned for a declaration that he was not liable under the Child Support (Assessment) Act 1989 (Cth). The Court agreed, stating that said Act released the donor from liability.

Reasoning: The absence of prescription in the Family Law Act 1975 (Cth) is because the state Act covers the field of donors; however, other provisions of the Family Law Act 1975 might not be so restricted by Section 60H – for example, a sperm donor without liability under the Child Support (Assessment) Act 1989 can still potentially have a support obligation under the Family Law Act 1975. Section 60H enlarges, rather than reduces, the people who might be considered parents.

Note to readers: This information is intended as a guide to the law and should not be used as a substitute for legal advice. While every effort has been made to ensure that the information contained here is as up to date and accurate as possible, the law is complex and constantly changing (particularly relating to same-sex parenting) and readers are advised to seek legal advice in relation to their situation.

If you need legal advice, please contact Nicole Evans from Nicole Evans Lawyers at nevans@nelawyers.com.au.

  • LinkedIn Social Icon
  • Black Facebook Icon
  • Black Instagram Icon
  • Black Twitter Icon

© 2019 by Lesbians & The Law