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Children and custody

Case study: Is the biological father a sperm donor or the child’s legal parent?

By November 20, 2017November 22nd, 2017No Comments

By Gianna Huesch

Rainbow families may be particularly interested in the case recently heard in the Family Court, involving a gay man, two lesbians and two children, a 10 year old girl being the biological offspring of the gay man, and a 9 year old being the biological offspring of an anonymous sperm donor.

In the case of Masson & Parsons and Anor, the court was required to determine who was the legal parent of the 10 year old daughter in the context of “a bitter argument over who are her legal parents”, given the term “parent” is not exclusively defined in the Family Law Act 1975 (the Act).

The two women were married in New Zealand in 2015 and because one of them took the other’s surname, the judgment referred to all parties by their first names (Susan, Margaret and Robert) to avoid confusion.

The older daughter had been conceived by private and informal artificial insemination in the context of a 25 year friendship between Robert and Susan, which friendship had now deteriorated.

The parties were seeking declarations of parenting under s69VA of the Act, but the judge found this was “misguided as the biological relationships are not in dispute”.  The judge explained:

“The section permits the Court to decide the issue of parentage, usually, but not always, by DNA testing, and to issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.”

As the biological facts of the children’s parentage were not dispute, the judge said that s60H of the Act (relating to children born as a result of artificial conception procedures) applied instead.

Here, the judge found Robert had genuinely fathered the child with intention of being involved as a parent, and that he was therefore a legal parent of the girl. In determining the question of whether Robert was an uninvolved sperm donor or not, the judge found that Robert had been involved with the daughter from birth and was “keenly interested in her care”, compared to the picture painted by Susan that Robert was only ever supposed to be a sperm donor and “occasional visitor of the child”.

The judge looked at case law in arriving at his conclusions that “the intention and belief of a party to an artificial insemination process is a factor to be taken into account”:

“If the evidence supports a finding, as I have found that it does, that Robert took part in the artificial insemination process believing that he was fathering a child whom he would help to parent, by financial support and physical care, then absent other legally disqualifying factors, he is a parent in the ordinary meaning of the word.

The judge found that Robert had intended to “take on the responsibilities of parenthood, together with Susan, as friends raising a child”.  In particular, the judge accepted Robert’s adamantly expressed views that he would only have been interested in co-parenting a child “if I was able to play an active role in their lives as father”, especially due to his own childhood experience of having an absent father.

Next, the judge considered whether Margaret (the child’s non-biological ‘mum’) was also a legal parent of the girl.  The judge explained that the legal requirement for “other intended parent” under s60H of the Act required that Margaret would have had to demonstrate she had been in a de facto relationship with Susan at the time the older child was conceived.  However, the judge assessed the evidence and concluded “that the relationship between the women had not reached the nature and quality of a couple living together on a genuine domestic basis”.  Therefore the legal requirement was not met, and Margaret could not be declared the other intended parent of the older girl. (She was, however, a legal parent of the younger girl, having been in a de facto relationship with Susan at the time the younger girl was conceived through a sperm donor program.)

Aside from the declarations of parentage, Robert sought shared parental responsibility between himself and the two women, while the two women sought parental responsibility to be granted exclusively to them. The judge found shared responsibility would expose the children to damaging conflict and so ordered the women to have the parental responsibility for any major long term decisions.

While the girls would continue to primarily live with the women, Robert would continue to spend time with the children, and would have responsibility for day to day decisions concerning the care, welfare and supervision of the children when they were in his care.

A further part of the matter involved the fact that the two women wished to relocate with the children to New Zealand.  But because the children had an “extremely positive, close and secure relationship with the applicant” father, this was deemed not in their best interests as relocation would “devalue” the emotionally significant relationships the girls had with both the man and his extended family.

It’s interesting to note that one of the reasons the judge gave for not permitting the international relocation was in relation to the manner in which Margaret had told the younger girl that Robert (who she had always called “Daddy”) was not in fact her biological father:

“I am more concerned about this evidence than the overall approach of the two women. The inference could be drawn that Margaret told [the daughter] that Robert was not her father in order to influence the outcome of these proceedings. Such emotional cruelty would not be consistent with a sufficient capacity to meet the child’s emotional needs. Another explanation is a lack of insight, but Margaret is not insightless…

“The possibility that there is some impairment in capacity is a persuasive factor in ensuring that all of the children’s relationships are maintained and are not reduced by the exclusion of Robert, his partner, Ms F and Mr H’s extended family.”

The judge noted the women had suggested that the “attachment between the children and Robert was being given elevated significance through the Court proceedings because of a societal norm that children have fathers. This concept was described by counsel, more than once, as a ‘hetero-normative idea’.”

However, the judge dismissed this, saying, “This proposition reveals a misunderstanding of the task of this Court, which is to make orders in the best interests of the subject children taking into account and preserving if possible the relationships that mean most to them.”

In fact, the sexuality of the parties could almost be said to be irrelevant, as the principles here could surely equally apply if the gay man and lesbian woman had instead been heterosexual friends who had agreed to co-parent a child by artificial insemination—and such arrangements are not completely unheard of.  The core issue was whether the biological father was a legal parent of the child or simply a sperm donor, and in the end, the case boiled down to the biological parents’ intentions at the time the child was conceived.

You can read the case here:

Do you need assistance with a family law matter?  Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice.  For information on how to obtain the correct legal advice, please contact Alliance.


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