When does a sperm donor go from being a ‘donor’ to ‘dad’? Continued…

A Clean Break

When does a sperm donor go from being a ‘donor’ to ‘dad’? Continued…

The area of law that establishes whether a donor is a ‘legal parent’ for the purposes of the Family Law Act 1975 (Cth) is an area of law that is still emerging.

As to recent and current developments in this area of law, the High Court of Australia recently granted special leave to hear an appeal from the decision of the Full Court of the Family Court in Parsons and Anor & Masson [2018] FamCAFC. The appeal is listed for hearing in the High Court of Australia on 16 April 2019. In summary:

  1. A child was conceived utilising artificial insemination and the father was named on the child’s birth certificate.
  2. A controversy arose between the parents as to the parentage of the child.
  3. At first instance, the Family Court of Australia held that the father was a ‘parent’ for the purposes of the Family Law Act 1975 (Cth). The Mother appealed this decision.
  4. The Full Court of the Family Court of Australia allowed the appeal and determined that the father was not a parent on the basis of Section 79 of the Judiciary Act 1903 (Cth) and section 14(2) of the Status of Children Act 1996 (NSW). The father sought, and was granted, special leave to appeal this decision to the High Court of Australia.

 

The High Court appeal will consider, among other things, whether the Full Court of the Family Court of Australia erred in concluding that:

  • Section 142(2) of the Status of Children Act 1996 (NSW) operated to determine that the appellant was not a ‘parent’ for the purposes of the Family Law Act 1975 (Cth); and
  • Section 60H of the Family Law Act 1975 (Cth) exhaustively defines parents of children for the purposes of that Act.

 

The written submissions on behalf of the parties to the appeal are now published on the High Court website and you may wish to peruse the same out of interest: http://www.hcourt.gov.au/cases/case_s6-2019.

The outcome of the High Court appeal will likely provide a pathway for determining who is, and is not, a legal parent for the purposes of the Family Law Act.

We will provide you with an update once a decision has been made in the High Court so watch this space…