The question of who is a parent is what the High Court of Australia was asked to consider when it heard an appeal in April 2019 in the case of Masson v Parsons and Ors.
The child was conceived by way of artificial conception in 2006. The sperm donor (the “Appellant”) was a friend of the Mother. The Mother was not in a relationship with her current parent at the time of conception. The Appellant had been involved in the child’s life since the time of her birth, was registered on her birth certificate and she referred to him as ‘Daddy’.
The Mother formed a same-sex relationship and they wished to relocate to New Zealand with the child. The Mothers sought orders from the Family Court in Newcastle and in October 2017 Justice Clearly found that the Appellant was a parent under the Family Law Act and that they were not able to relocate as this would not be in the best interests of the children.
The Mothers appealed this decision to the Full Court. The Full Court agreed with them and found that the trial Judge had failed to apply the relevant provisions of the New South Wales Status of Children Act 1996 which 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 applied and under this legislation the circumstances of conception can result in some men not being considered a parent. This is what happened in this case.
The Appellant sought leave to appeal to the High Court and on 14 December 2018 special leave was granted to determine the question ‘who is a parent under the Family Law Act 1975.
The Constitutional issue resulted in the Commonwealth Solicitor-General intervening to support the Appellant and the Solicitor General of Victoria intervening in the proceedings to support the Mother.
The High Court ruled in favour of the Appellant, overturning the appeal and reinstating the initial Judgment of Justice Clearly. The Court found that the NSW Law was not applicable and the definition under the Commonwealth law should be applied.
What impact this ruling will have on people undertaking surrogacy remains to be seen.
If you have a question about Family Law, call Michelle Meares Specialist Family Lawyer Mediator on 4324 7699.