Georgia Miller, Lawyer at Gadens, discusses a case involving the question of parenthood. In the traditional family law parenting cases, there is rarely an argument about a child’s parentage. However, cases involving sperm donors, altruistic surrogacy arrangements and same-sex relationship may involve the consideration of who is a “parent”?
On 19 June 2019, the High Court of Australia released the judgment of Massons v Parsons  HCA 21 where the Court ruled that a sperm donor, who was not in a relationship with the biological mother at the time, was the legal father of the child.
Before the Court, Mr Robert Massons (“Robert”) argued that he and Ms Susan Parsons (“Susan”) had agreed to conceive (by way of artificial insemination) and raise a child together. The child (“A”) was born and is now 11 years of age. Robert’s name is listed on A’s birth certificate and A refers to him as “daddy”. Robert has an ongoing relationship with the child and plays a vital role in the child’s life including caring for the child, being involved in her education and general welfare as well as providing financial support to her.
After the birth of A, Susan subsequently conceived another child (by way of donor sperm) (“B”). At the time of conceiving B, Susan was in a relationship with Ms Margaret Parsons (“Margaret”).
For many years Robert and his partner and Susan and Margaret enjoyed a co-operative parenting relationship. However, the relationship soured when Susan and Margaret sought to relocate to New Zealand; Margaret’s home country. At this stage, Robert instituted legal proceedings to restrain Susan from relocating with the child to live in New Zealand. He argued that he was the legal parent of A within the meaning of the Family Law Act 1975 (Cth) (the Act) as he was the biological father of her.
The case before the Courts
Robert commenced proceedings in the Family Court of Australia before Justice Cleary. Her Honour’s decision was then appealed to the Full Court of the Family Court of Australia which, in turn, was appealed to the High Court of Australia.
Before the Courts, there was no doubt that Susan was the biological mother of both A and B. It was also not in dispute that Margaret was “the other intended parent” of B (as she was in a relationship with Susan at the time of conception). The question before the Court, was; who was the other legal parent of A?
Robert argued that he was the legal father of A and as such, the presumption of equal shared parental responsibility applied. Under the presumption, both parties must make a genuine effort to make a joint decision in respect of long-term issues affecting a child. Robert argued that under the presumption, his consent was required before the Parsons’ could relocate child A’s residence to New Zealand.
The High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) considered whether, by combination of the State and Commonwealth legislation, Robert was irrefutably presumed not to be the father of A. Their Honours considered that this was not the case and as such the state legislation did not apply and Robert was not irrefutably presumed not to be the father of child A.
Their Honours went on to consider whether Robert was the legal parent of A. Their Honours accepted that the Act did not provided an exhaustive list of who may be a parent and further considered that the term “parent” should be given its ordinary and contemporary meaning except where the Act provided otherwise.
The High Court held that to limit Robert’s role as “sperm donor” was to discount his intention and his role in the child’s life. Notably, the High Court was not prepared to say that a “sperm donor” i.e. a person who does no more than provide his semen to facilitate artificial contraception, fell within the ordinary meaning of the word “parent”.
Considerations that flow
Massons v Parsons  HCA 21 demonstrates that the Act does not set out an exhaustive list of who may be a parent. Rather, the Act is taken to have an expansive effect in determining who may be a parent.
As a starting point, a child’s donors of genetic material are considered to be the parents of the child. Whilst this is usually a de facto or married couple, it also encompasses separated couples or two individuals who were never in a relationship but nonetheless consented to have a child together.
The Act further provides that where a child is born as a result of artificial insemination, the parents are the biological mother and “the other intended parent” who consented to the carrying out of the procedure. The other intended parent is usually the partner of the biological mother and is considered to be a parent, regardless of their biological connection to the child.
In adoption arrangements, a child is considered to be the child of the adoptive person (or couple).
The High Court has fallen short in determining that a sperm donor (without more) is a parent. Where a person donates their genetic material, the Court’s focus in determining whether the donor is a parent, will be upon the circumstances in which the material was donated.
For many people, being recognised as a legal “parent” is an important recognition of the role and responsibilities for a child. However, it is not the only means by which a person can exercise parental responsibility for a child. It is not uncommon for step-parents and grandparents to exercise parental responsibility in the absence of legal parents. The Act even provides that these parties may bring legal proceedings in relation to the care, welfare and development of a child.
You should seek legal advice if you are unsure of your legal standing as a parent or are wondering whether you can make long-term decisions for a child.
Georgia Miller works as part of the Gadens’ Family and Relationships Law team at its Melbourne office. She has worked almost exclusively in family law since being admitted to legal practice in 2015. Having worked as a Judge’s Associate in the Family Court of Australia and the Federal Circuit Court of Australia, Georgia has developed a familiarity with litigation and court processes. Based upon this experience she understands the emotional and financial toll that a separation takes on a family. Georgia advises clients to reach a resolution of their family law matter based upon their legal entitlements and balanced with their relationship with their former partner and/children moving forward. As part of this balancing act, Georgia recognises the need to resolve matters in a timely and cost efficient manner. In addition to resolving disputes after separation, Georgia is also focused upon providing advice to clients on how to avoid or minimise family law proceedings using Financial Agreements. Gadens’ Family and Relationships Law team operate as part of a national law firm with offices in Adelaide, Brisbane, Melbourne and Sydney. As part of a corporate law firm, the Family and Relationships Law team focuses upon corporate family law matters involving trust structures and related third party interests as well as division of property interests and children’s matters between separating couples.
To view the Family and Relationship Law team and individual profiles visit us at the Gadens website or via LinkedIn . Georgia can be contacted directly via telephone 03 9252 2555 or email Georgia.firstname.lastname@example.org.