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High Court Decision – June 19th 2019

On 19 June 2019, the High Court of Australia handed down a land mark decision which turns on the definition of “parent” under the Family Law Act (“the Act”). Although in the general course of matters, the parents of a child, for the purposes of the legislation, are easily identifiable. Sometimes, and particularly where artificial insemination is involved, it is not always straight forward.

In this matter of Masson & Parsons, a man donated sperm to a woman, with the intention that he would support and care for the child. There was no doubt that the man was the biological father. However, was he a “parent” of the child by legal definition and therefore entitled to seek relief in the Family Court in respect of parenting orders?

At the time of trial, which was some years after the donation of sperm, the court found the man had an ongoing role of financial support, health, education, general welfare and had an extremely close and secure attachment with the child.

Although the Judge at first instance decided the man did not qualify as a parent under section 60H of the Act (the section which provides rules in respect of the parentage of children born of artificial conception procedures), Her Honour did go on to find that he was a parent within the “ordinary meaning of the word.”

On appeal, the Full Court of the Family Court found that the father was not a parent by virtue of the Status of Children Act, which expressly states the man is not a parent as a result of the artificial insemination.

Ultimately, the High Court agreed with the trial Judge and found the man was a parent within the “ordinary meaning of the word” and thus he was entitled to seek relief from the Family Court in respect of parenting orders.

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