Ms Simpson and Ms Brockmann had had a trial in the Federal Magistrates Court. An appeal ensued, and on the morning of the appeal, they handed up to the court a proposed order consenting to the appeal and declaring that each of the women be named as the parent of the child of the other.
This issue had not been canvassed at the trial, or at any earlier stage of the appeal process.
Justice Warnick, with whom Justices May and Barry agreed, remitted the matter back to the Federal Magistrates Court for further hearing and rejected the proposed declaration, in part because:
I am not satisfied that the power to make a declaration as to parentage in
that section in fact applies to circumstances that present here, where there is
no issue about the parentage of either of the children. It is well known who the
mother is of each child. It is not known who the donor of sperm was, but it is
known that it was the same male person in each case. Nothing contended to be any
The issue here is not about parentage, but the position or description
which each of the mother's wishes to adopt in relation to the child of the other
mother for the purpose of parenting orders. That is not the same as the
determination of an issue about parentage.