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  • The High Court’s decision in Masson v Parsons affirms there are circumstances in which a person who provides genetic material in an artificial conception procedure may be found to be a parent of the resulting child under the Family Law Act.
  • The Court held that whether a person is a ‘parent’ pursuant to the Family Law Act is to be determined by reference to the ordinary, contemporary Australian understanding of the word, subject to any applicable provisions of the Act.
  • The decision does not create any general rule that a man who donates sperm to a single woman is a parent of the child conceived.

On 19 June 2019 the High Court unanimously allowed the appeal in Masson v Parsons [2019] HCA 21 against a decision of the Full Court of the Family Court. It concerned the status of the appellant, Robert Masson, in relation to a child conceived by ‘informal’ artificial insemination with the first respondent, Susan Parsons. The HCA decision reinstates the decision of the trial judge, Cleary J (Masson & Parsons and Anor [2017] FamCA 789) which had held that Robert was the child’s parent.

The status of a person donating genetic material is, at law, complicated by the interaction of State and Federal legislation. Federal Parliament has powers in relation to marriage; and ‘divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants’ (Constitution s 51 (xxi) and (xxii)). In the mid-80s, the States (save for Western Australia) referred their powers relating to ex-nuptial children to the Commonwealth, and the jurisdiction of the Family Court. The FLA and the State Status of Children Acts (Parentage Act in the ACT) both deal with the parentage of children conceived via assisted reproduction. It is the interaction of this legislation which was in question in the appeal.

Whether or not a person is a legal parent of a child impacts whether they have parental responsibility for their children (FLA s 61C) (absent any court orders to the contrary). It also affects the applicability of different sections of Part VII of the FLA. Parental status does not, however, impact a person’s capacity to seek parenting orders in relation to a child (FLA s 65C) and, indeed, may make no difference to the outcome of a parenting dispute. Parental relationships per se are not privileged over other relationships in a child’s life (Aldridge v Keaton (2009) 42 Fam LR 369, 387-88). Legal status as parent may also have little or no impact on how children perceive their relationships with different people.

Facts and procedural history

Susan (‘S’) and Robert (‘R’) had been friends for many years. In 2006 they conceived a child together, by ‘informal’ artificial insemination. The child was born in 2007. As part of a wider dispute pursuant to the FLA over the parenting of that child, S, and her wife Margaret (‘M’) (the second respondent), challenged R’s status as a legal parent.

At the time when S and R conceived a child together, S was in a relationship with M, but it was not a de facto relationship. S gave birth to R’s biological child, ‘B’, in 2007, and R was named as B’s parent on her birth certificate. The following year, S gave birth to another child, ‘C’. C was conceived by artificial insemination using sperm anonymously donated in the United States. By this time, M and S were living together, M had taken S’s surname, and M was named as a parent on C’s birth certificate. Cleary J noted that both children referred to R as ‘Daddy’, and at the time of the hearing, C had only recently learned that R was not her biological parent (trial judgment, [9]-[11]).

Cleary J found that in 2015 the relationship between the parties began to deteriorate. In response to R’s parenting application, S and M sought that his name be removed from B’s birth certificate, that M’s be included instead, that M be declared a parent of B, and that they be permitted to relocate to live in New Zealand with the two children (at [180]-[182]).

While it was accepted that R is not a legal parent of C, the aspect of the dispute before the High Court concerned whether R is a parent of B. Adopting an expansive view of who may be a parent pursuant to the FLA, Cleary J found that he was. This was overturned by the Full Court of the Family Court (Parsons & Masson (2018) FLC 93-846 per Thackray J, Murphy and Aldridge JJ concurring) – on the basis, as explained below, of the applicability of s 79 of the Judiciary Act 1903 (Cth) (‘JA’). R appealed.

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