In Masson & Parsons and Anor [2017] FamCA 789 (3 October 2017) Cleary J heard applications by three parties for parenting orders in respect of two children, girls aged 10 (‘B’) and almost nine (‘C’). The children lived with their mothers known to them as ‘Mummy’ and ‘Margaret’ and spent time with their father and his partner known to them as ‘Daddy’ and ‘Greg’”.

Applicant’s Submission

B was conceived by artificial insemination, the applicant (“Robert”) agreeing to provide his sperm to the mother (“Susan”), who subsequently married her partner Margaret (via a same sex marriage in New Zealand).

Robert was not the biological parent of C (who was conceived by a donor program). Robert was on the birth certificate of B while Margaret was on the birth certificate of C. Robert sought an order for shared parental responsibility for both children; that the children live with Susan and Margaret but spend time with him, and that Susan and Margaret be restrained from relocating to New Zealand.

Respondents’ Submission

Susan and Margaret sought declarations of parentage; that Robert’s name be removed from B’s birth certificate, and that the children be permitted to relocate.

Who is the Parent?

After referring to s 60H of the Family Law Act 1975 (the “Act”), Cleary J said that for Margaret to be a legal parent, the evidence must support findings that:

(i) Susan and herself were in a de facto relationship at the time of conception of B and
(ii) Susan and Margaret consented to the carrying out of the procedure and Robert consented to the use of his genetic material in the artificial conception procedure.

To determine whether or not there was a de facto relationship between Susan and Margaret at the relevant date (December 2006) the Court considered the definition of ‘De Facto Relationship’ under the Act.

It was not controversial that Robert was involved with B from birth and keenly interested in her care. It was improbable that if Susan had wanted only an uninvolved sperm donor but had been forced in some way to accept Robert’s involvement, that she would have asked him, as she later did, to father a second child.

There were no common assets [between Susan and Margaret], there was no evidence of them being socially known as a committed couple; what they had was a rapidly developing intimate relationship. The settled domestic relationship came later.

In October 2006 Susan and Robert made their first attempt to conceive a child. They did so alone together, Susan travelling to Robert’s apartment in Sydney. Whether or not Susan suggested they try sexual intercourse as Robert asserted and Susan denied she did, they did carry out an artificial insemination.

The Court stated that it was uncontentious that Margaret was not present.

Robert asserted and the Court accepted that at the first conception attempt in October 2006 he ‘had no knowledge of Margaret whatsoever’.

In the Court’s view Susan was acting independently of Margaret at that time, keeping faith with what she and Robert had discussed.

In December 2006 the relationship between the two women was new, affectionate and still developing. The Court concluded that the relationship between the two women had not reached the nature and quality of a couple living together on a genuine domestic basis.

It followed that Margaret did not meet the legislative requirement to be the other intended parent.

Whether “Robert” Can be a Legal Parent

For Robert to be a legal parent, the Court concluded that the evidence must at least support findings that he provided his genetic material for the express purpose of fathering a child he expected to parent, and was unaware of the de facto relationship now asserted to have been in existence at the time of conception.

With respect the Court agreed that the intention and belief of a party to an artificial insemination process was a factor to be taken into account.

Being a biological parent was not the whole answer to the question who is a parent. Donors of eggs or sperm very often make express disclaimers (for instance in surrogacy agreements) of future involvement in the life of a child. They do so in order to disclaim the rights, obligations and benefits of being a parent.

Where, however, is a challenge to a biological parent being a legal parent, as there is here, biology is a part of the answer.

The Court found 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. Accordingly, absent other legally disqualifying factors, he was a parent in the ordinary meaning of the word.

Accordingly, taking into account that Robert is the biological father of B, the Court concluded that Robert was a legal parent of B.

Parental Responsibility

As to parental responsibility and parenting arrangements, the Court stated that the person that should have parental responsibility is not simply defined by legal parenthood. The Court was satisfied that each of the three parties exercised parental responsibility in respect of the children with a level of consultation and co-operation about decision making for the children being undertaken between the respondents and the applicant in a successful way prior to these proceedings, or at least since 2014.

The Court was persuaded that the most appropriate course was for Susan and Margaret to exercise parental responsibility on an equal shared basis for both children in relation to long term issues.

Although it would be possible to include Robert in shared parental responsibility, the Court considered it would be taking a risk of exposing the children to damaging conflict to do so. The existing arrangements have worked very well, that is, that they live with Susan and Margaret and spend regular time, including week days, weekends and holidays with Robert and members of his household, Ms F and Mr H.

The first observation of the single expert about views expressed by the children was that ‘they preferred things to stay the way as they are’.

There had been no occasion when any of the adults has failed to take the opportunity to spend time with the children and communicate with them and in the case of Robert, to participate in making decisions when invited to do so in the past by Susan and Margaret.

There was no doubt at all that each of the parties had the capacity to meet the needs of the children, emotionally, intellectually, physically and financially at a high level.

Court’s Conclusion

The Court reached the conclusion that the children would do best if Susan and Margaret make the long term decisions about their future in consultation with Robert. That was a perpetuation of the arrangement that had been in place in the past until the relationship deteriorated commencing in about 2014.

The Court concluded that the children should live with Susan and Margaret in Australia, not New Zealand, to enable them to spend regular week day, weekend and holiday time with Robert.

The Court concluded that the risks of devaluation of the children’s relationship with Robert and his extended family is a risk that should not be taken when the children have thrived and done well in the arrangements which all three parties have put in place for them over the years since the birth of each child.

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