Your selected location:
21 Feb 2019

Written by Eliza Fitzgerald, Lawyer, Family Law

The High Court is set to deliberate on parental role of a sperm donor

In recent times, an increasing number of individuals have approached the Family Court of Australia seeking a declaration of parentage as a result of donor conception, surrogacy,  In Vitro Fertilisation or artificial insemination. Despite the growing number of applications and the similarity in their contents, there has been a significant divergence of judicial opinion in regards to who is considered a ‘parent’ of a child. In 2019, the High Court of Australia (High Court) will be hearing an appeal, which will require a reconsideration of what it means to be a ‘parent’ and whether the current emphasis on biology as to how someone was conceived is still relevant. Given that the appeal is fast-approaching, we have discussed the genesis and Court decisions that have led to the appeal to the High Court.

What is the factual background underpinning this case?

In Parsons and Anor & Masson [2018] FamCAFC 115, the biological birth mother, Susan, was is in a de-facto relationship with Margaret, and they had two children (child B and C) who were both conceived through artificial insemination. The sperm for child B was donated by the Respondent, Robert, and by an unknown donor for child C. Over the years, Robert spent regular time with the children, and both children would call him ‘Daddy’.

Susan and Margaret sought orders for the children to relocate to New Zealand, and Robert opposed their application given he sought to spend time with the children in Australia.

Was Robert deemed a legal parent?

At first instance, the trial Judge was of the view that Robert was the legal parent of B, and consequently did not permit the relocation to New Zealand.  The trial Judge also ordered that Susan and Margaret were to have equal shared parental responsibility, however, they had to consult with Robert prior to making any long term decisions about Child B.

Susan and Margaret appealed against most of the orders made, but in particular argued that the trial Judge was in error by finding that Robert was a legal parent of child B. They also argued that the assessment of the best interest of child B was flawed due to an erroneous finding that Robert was the legal parent of child B.

Appeal Allowed

The Full Court of the Family Court held that the trial Judge had incorrectly determined that Robert was the child’s ‘parent’, which was contrary to a state law on the status of children.  Ultimately, Robert was found not to be the legal parent of child B, which has now prompted calls for the law to be updated.

Regardless, Robert appealed the decision from the Full Court of the Family Court and he was granted special leave to the High Court. The matter is set down to be heard sometime this year.

This case is significant, because it poses a number of unanswered questions. Should the Court consider how the child was conceived? Are the birth parents intentions relevant? Is the child’s view and perspective significant? However, most significantly, this year, we will find out what it means to be a legal parent.

 

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

Supporting Western Australians for more than 100 years

"Always fast and thorough service. Thank you"

Sitka Pil

My circumstances at the time I made contact with HHG were dire following my argument being rejected by two no win no fee firms. Following my initial meeting with HHG's employment law team I was left feeling extremely positive by the response and concern shown by HHG in regards to their support of my argument along with their preparedness to pursue an outcome on my behalf.

I accept the fact that nobody really wins in these cases (mental health/ workplace) however the end result was what would be considered most favourable and far in excess of what would have been achieved had I not sought the advice from HHG.

I have no hesitation in recommending HHG to anyone caught up in the messy circumstances I found myself in at the time.

Great advice and five-star commitment to their client!!"

Nathan Lynch

"Thank you for such great assistance with the transaction of Flying Domestics on behalf of Lorna Good. It has been such a pleasure to work with the HHG Legal Group and I look forward to working with you in the future."

Jim Goodwin

"Simon Creek and his team were at all times empathic, professional and confident.  My matter needed to be addressed within a pressing time frame, and their availability at short notice and contact after hours was much appreciated.  It caused me considerable stress, but having such a thoroughly reliable and competent team to call on helped me to feel in control. Although I hope not to need their services again in future, I would be confident in doing so!"

Dr Lana Bell

"A good outcome is what we can expect.  A great outcome is a sign of a company which does the very best for their clients. A very big thank you to Daniel Morris for showing empathy towards my small and much needed legal action.

To HHG Legal Group, thank you for a great outcome.  I would recommend your company to anyone seeking legal services."

Jan Atkinson

"Your support this morning was amazingly kind, not to mention your totally reassuring competence, knowledge and wisdom that you used on my behalf.  It was extremely reassuring to have your knowledgeable support, and I particularly appreciated your real and obvious kindness to me. It means so much at a very difficult time. I'm so grateful to you."

Family Law Client

"Janene was very professional and we established a good rapport quickly. The subject of death and wills can be quite confronting to deal with, however, Janene's approach was soft and accommodating."

Lynette Livesey

"A big thank you to HHG for their professional service, continued support, and wide range of legal knowledge. Our clients have given us nothing but kind words regarding HHG Legal Group and so we have no hesitation in referring and recommending Simon Creek and HHG Legal Group for their outstanding services and legal expertise."

Nigel Plowman, Director at McKinley Plowman & Associates

"Simon is a friendly and practical legal advisor. I have received great feedback from the clients I have referred to him and his team at HHG Legal Group."

Richard Beal, Director at BDO

"Over the last few years, I have been impressed by Simon’s legal ability, management skills, entrepreneurial spirit, personal integrity and people skills. He appears to be that rare breed of lawyer – both knowledgeable and commercial."

Michael Malone, Founder of iiNet

"Our family has been a client of HHG Legal Group over many years.  Business has included drawing up of wills for three generations and preparing of probate for my father in law. I would have no hesitation in recommending HHG Legal Group to anyone requiring such services."

Bernice Climie

"You should be congratulated for the manner in which your staff address clients and we found our dealings with your company, once again a very pleasant experience and we would like to truly thank you for your efforts."

Steve Harvey and Jane Powell

"HHG Legal were absolutely fantastic. Extremely responsive and brought calm to our chaotic family situation through their knowledge and caring attitude. Extremely professional from our very first contact with them and they expertly guided our family though the required legal process over almost a 12 month period."

Amanda Williamson

"Fantastic team! They really care about their client. Tim Colcutt is a 'go that extra mile' guy who gives his client his all. I can't recommend HHG and Tim enough."

Kerry Samson

"I had a fantastic lawyer in Anne Hurley. She helped me out a great deal with good, sound advice in a friendly, professional manner. First class, thanks Anne"

Graeme Hammond

"Marine Plant Systems has been working with HHG Legal Group for a few years now and they continually provide first-class service. Their professional advice has been invaluable to our company."

Carolin Grimm - Marine Plant Systems

"We were kept up to date at all times. Pricing was always updated over the time period so we remained "in budget". Personal access to someone whenever I had questions. All in all a great experience without too much fuss."

Rosslyn Tasker - COO AltusQ Pty Ltd

"Good service you can count on."

Miles Lee

"HHG Legal Group has provided outstanding support as I have taken the journey of buying a business, their professionalism is beyond reproach. Their assistance throughout the Due Diligence process has been invaluable, I would fully recommend them."

Mark Armitage

"Very friendly and efficient service - what a pleasure working with Anne."

Jacques Taylor

"I highly recommend Daniel from HHG Legal Mandurah. When dealing with a complicated legal property matter recently I was extremely impressed by Daniel's honesty and integrity and the legal advice I received. I am very happy with the service from HHG Legal."

Tony Walker

Select your location:

Please select your nearest office location so we can show you the most relevant information.