Sunday, 16 August 2015

What an extraordinary week- and equal marriage seems as an elusive goal as ever

It seems surprising that an issue such as equal marriage rights has sucked up so much oxygen in national politics, but that has come about with the position of the Prime Minister to oppose come what may, any change to the definition of marriage from that of one man and woman, to the exclusion of others, for life.

Just over a week ago I took part with my fiance Mitchell in the equal marriage rally in Brisbane. I delivered a speech: Thank you to Chris Harvey for (unexpectedly) recording the moment for history.

On Tuesday I was with Brisbane's Lord Mayor Graham Quirk and Councillor Vicki Howard. They are LNP members. Brisbane this year for the first time lit up its iconic Story Bridge in rainbow colours when IDAHOT (International Day Against Homophobia and Transphobia) was held in May. On the same day in May Councillor Howard for the first time raised the rainbow flag at City Hall.

In addition, as part of its policy of inclusion, the Quirk administration funded for the first time the Brisbane Pride Festival. The proof of the administration's commitment was in the pudding the night I was awarded the LGBTIQ Activist of the Year when the event was held at City Hall, was attended by Councillor Howard, was opened by Lord Mayor Quirk, and City Hall was lit up inside and out in rainbow colours.

How much more inclusive could you get?

In any event, I was seeking to encourage the administration to take up a suggestion to have an LGBTI advisory committee, as well as welcoming the efforts so far.

While that meeting was underway, at the very same time the Coalition partyroom was meeting in Canberra, in what Christopher Pyne described as "branchstacking", and decided that there would be no free vote in favour of equal marriage. In other words, while Liberal backbenchers could vote in favour, in accordance with their party's position on matters of conscience, Cabinet members and Ministers could not. They were stuck with Cabinet and Ministerial solidarity- and must stay with, notwithstanding their personal views, unless they resign their position.

Since then the Prime Minister has talked about there being a referendum or plebiscite to decide the issue of equal marriage. Scott Morrison was quick to suggest that there be a referendum, and Attorney- General George Brandis said in effect- wait on, it cannot be a referendum, but a plebiscite.

Either way, the odds are stacked against any positive change- while this Government is in power.

Brandis is right. A plebiscite is a non-binding vote by the Australian public to decide an issue. It is non-binding because only the Parliament can change the law, so even if a plebiscite said that gay marriage should be allowed, it will still be up to the politicians in Parliament House to make the laws to allow equal marriage. If enough politicians in either House claim that the Australian people got it wrong, or because they don't like the outcome, then the laws will not pass, no matter what the outcome of the plebiscite.

A referendum is a vote of the people to change the constitution. This approach appeals to conservatives, because the tradition of referenda is that the no vote will usually win. A requirement is to have a majority of voters PLUS a majority of States. Fail in either and the vote will fail. Odds are stacked against any referendum before it is held.

However, if there is to be a plebiscite or a referendum, a plebiscite, not a referendum is the way to go. Constitutional law 101: a referendum is needed to change the constitution, but the constitution does not need to be changed. Since 1901 the Federal Parliament has had powers to enact laws about marriage. It did so, for example in 1961 with the enactment of the Marriage Act. That Act has been amended several times, including under John Howard in 2002 to change the definition of marriage so that it clearly did not allow equal marriage. In 2013 the Commonwealth had a win in the High Court when the ACT's gay marriage bill was thrown out- because it conflicted with the Marriage Act.

The High Court was clear- the Commonwealth Parliament can legislate about equal marriage. The six judges hearing the case unanimously said this in the second paragraph of their judgment:

"The Commonwealth, the Territory and Australian Marriage Equality Inc (as amicus curiae) all submitted that the federal Parliament has legislative power to provide for marriage between persons of the same sex. That submission is right and should be accepted."

I don't think it could be clearer than that!

Either way will be a process that will likely cost the taxpayers of Australia, according to reports, over $120 million. I wonder what could be funded with that $120 million. Maybe 24,000 chopper rides of $5000 each?

And we have to have this because our politicians are unable to have a free vote, in accordance with the consistent wishes of the Australian public?

While the PM may think this issue has gone away, it hasn't. The PM is on the wrong side of history, is perceived as being unfair, and is viewed as using tricks to prevent a free and fair vote on the issue. The Australian people have moved on. A majority have said consistently that they will be supporting the change. There are those like me who are disappointed about the outcome. There are others who have white hot rage about this issue, particularly the way that it was handled this week, and will keep that rage going for a long time to come.

Sunday, 2 August 2015

Rally for marriage equality and equality for all this Saturday in Brisbane

This Saturday I will be joining other speakers at the marriage equality rally in Brisbane. It is expected that there will be thousands present. The more the merrier! The rally will address the lottery of the law which determines who is and who is not allowed to marry their partner of choice.

I last presented at a marriage equality rally in Brisbane in 2012, the rally where the ABC afterwards tagged me as an activist. It is expected that this time that there will be many more attendees.

A majority of Australians have consistently believed that there should be marriage equality, as has happened in Canada, many countries in Europe, New Zealand, and most recently Ireland and the US.

Human Rights Commissioner Tim Wilson, an Abbott government appointee, has called for an end to State sanctioned discrimination against LGBTI people, including as to marriage, a call that to date has not been responded to in the affirmative.

Ever since Thomas Paine wrote in the 18th century what was considered to be a revolutionary text, The Rights of Man, human rights have been named, and those traducing those human rights have been shamed. A consistent path since the Age of Enlightenment has been the recognition of new human rights and then action taken to ensure that those rights are available.

It has always been taken for granted in Australia that heterosexual people can marry. To say that it is not a right would be a ridiculous proposition. Yet the very opposite is suggested for those who to wish to marry their beloved - of the same gender.

As the US Supreme Court recognised back in 1968, when dealing with Virginia's laws against interracial marriage, the right to marry is a fundamental human right. In the recent decision of the US Supreme Court, that fundamental human right was extended to same sex couples, as many other court decisions in the US had already done.

The ridiculous state of being that we now possess is that if a couple wish to marry- who present as opposites but are genetically of the same gender, they are allowed to marry, but if they present the same because they remain of the same gender, they cannot.

Those born male, for example, who identify and are now recognised by law as female are allowed to marry a man, but are not allowed to marry a woman- because the latter is not permitted.

Intersex people strike even more difficulties. Depending on how they were treated when growing up, it may be a purely arbitrary thing that they are allocated male or female. Depending on that luck of the draw, and decisions made by their parents and doctors when they were growing up, and who they fall in love with, will then mean in the lottery of the law as to whether they can marry or not.

Bills before the Parliament, including those sponsored by Brisbane MP's Terri Butler and Teresa Gambaro, would cure these problems. No longer will there have to be a judgment call as to whether a couple can marry, depending on their sexual orientation. They will simply be a couple, in love, wishing to live in matrimony for the rest of their lives.

Whether our Federal MP's are given the chance to vote on this issue will remain to be seen. All that we can do is to exercise our people power, let our MP's know how we feel, and turn up at rallies like this one.

The rally is at 1pm, this Saturday 8 August at Queens Park (opposite Treasury Casino).

LGBT Family Law Institute regional meeting to occur in Australia

In March next year there will be an historic meeting in Brisbane of the LGBT Family Law Institute. The Institute is a group of credentialled family lawyers, based in the US, who have acted in and support LGBT clients and issues. It is ultimately affiliated with the American Bar Association.

It is hoped that family lawyers from across Australia, south-east Asia, New Zealand and the US will be attending. They will be able to discuss current family law issues, including marriage, adoption, surrogacy, who is a parent, and how the Family Law Courts deal with matters where one or both of the parents is LGBT.

In May I attended the first regional meeting of the Institute outside the US- in London. The London meeting has led to the first grouping of LGBT family lawyers in the UK, an amazing achievement. This step alone will help achieve equality there. I was then given the job, by the Institute’s founder and guru, Bill Singer, a family and surrogacy lawyer from New Jersey, to replicate the success in the UK with a meeting in Australia.

The meeting will take place on 12 and 13 March, the weekend after Mardi Gras, and just in time for Big Gay Day. Shine Lawyers will be generously providing sponsorship, allowing the meeting to take place.

Amongst attendees will be lawyers from the National Center for Lesbian Rights. The NCLR has been at the forefront of the fight for equality in the US, including providing submissions as friend of the court in many of the equal marriage cases across the US.

Who is a parent under the Family Law Act?

One of the most vexed issues for those in alternative families is working out who is or who is not a parent, and if not a parent, then what happens?

This was the mammoth topic I was given to present about at the Television Education Network conference last week on the Gold Coast. Here is my paper:


23-24 July 2015


By Stephen Page[1]

Introduction: Getting pregnant
Welcome to the wonderful world of making babies!
There are only three ways to get pregnant:
·      The old fashioned way- by heterosexual vaginal intercourse;
·      By artificial insemination- when sperm is injected into the uterus by use of some device, such as a catheter, a syringe or a turkey baster;
·      By implantation of an embryo created somewhere else.
Such is the jargon that comes with the territory; a decoding of the jargon at this point might be helpful:
ART is the process of getting pregnant with the help of doctors. It is commonly called assisted reproductive treatment, but can also be called artificial reproductive treatment or artificial reproductive technology. It can cover artificial insemination, IVF and other techniques.
Blastocyst is a developed embryo, typically 5 days old. It remains microscopic.
Conception is the act of creation of a person. It could be the fertilisation of the egg, but has been held to be at the time of pregnancy, i.e., with ART after the implantation of the embryo.
Embryo is a fertilised egg.
Implantation is the act of placing an embryo (which is microscopic) via a very fine catheter into the uterus of a woman.
ICSI is intra-cytoplasmic sperm injection-where a catheter or tube is used to place one sperm into an unfertilised egg
IVF or in vitro fertilisation is the act of having an egg fertilised by a sperm outside the body, typically in a petri dish, hence in glass or in vitro.
Oocyte (pronounced oh-a site) is a human egg.

Ryan J stated in Ellison & Karnchanit [2012] FamCA 602:
            Spread across different divisions in Part VII there are a number of provisions that deal   with parentage, presumptions and declarations of parentage.  Those in Division 1          operate to irrebuttably deem the child for the purposes of the Act, in the circumstances        there identified, the child of designated people.  Those in division 12  create rebuttable    presumptions for the purpose of the Act.  Notably by s69U it is acknowledged that two or   more presumptions under that subdivision may apply, in which case (excluding s69(1)).  It          is for the Court to determine which presumption should prevail. Then in division 12     subdivision B, the Court is empowered to issue a declaration of parentage that is conclusive          for the purposes of all laws of the Commonwealth.  In essence there is a scheme which             operates so that, for the purposes of the Act or Federal law, children may variously be             deemed, presumed or declared the child of a person.”[2]

G v H (1994)
A good starting point in discussing the issue of who is a parent is G v. H (1994) HCA 48. H sought that G, her former de facto partner, undertake a DNA parentage test, to determine if he were the father of her child. H refused, on the basis that G was a prostitute.
Deane, Dawson & Gaudon JJ stated at [17] as to the parenting presumptions:
            “The presumptions operate in the interests of the child and provide the basis for the           imposition of parental duties and a responsibility unless and until proved to the contrary is      forthcoming.”
Their Honours stated:
            “While a determination of parentage for the purposes of Family Law Act proceedings is     obviously a serious matter for both the child and the putative parent, such a determination             cannot properly be regarded as a declaration of paternity in the traditional sense.”
The High Court held that an adverse inference could be drawn against G for his refusal to submit to parentage testing therefore it could be inferred that he was the father.

Brennan and McHugh JJ stated at [7]-[8]:
            When the question of paternity arises and the evidence discloses that one of two or men    must be the father but it is uncertain which of those men is the father, a slight       preponderance of evidence tending to show that a particular man is the father may be        sufficient to establish paternity if that man fails without reasonable excuse to comply with           the parentage testing order.  That is because, first, paternity is an issue that, as between two          or more men, is inherently difficult to prove without proper parentage testing, so that a           slight preponderance of evidence may be all that can be offered in proof and, secondly, the          testing procedures now available have been demonstrated to be so accurate that the results           will almost inevitably conclude the issue.
At [8]:
            “We do not suggest that paternity is not a serious issue.  It is serious because paternity      carries with it both significant privileges and grave responsibilities, only some of which    relate to monetary obligations.  The attribution of paternity may be seen by a child’s mother           to be no more than the means of procuring a means of a maintenance order during the             child’s infancy, but a finding that a particular man is the child’s father might well be of a     greater significance to the child in establishing his or her life time identity but, when a court is deciding whether a party on whom rest the burden of proving an issue on the      balance of probability says discharge that burden, regard must be had to that party’s ability          to adduce evidence relevant to the issue and any failure on the part of the other party to             adduce available evidence in response.         
In order that justice be done so far as the nature of the subject permits, the burden of proof of paternity in proceedings for the maintenance of a child born to an unmarried mother must be discharged when the party on whom it rests adduces the evidence available to her or him and that evidence tilts the balance of probability in favour of the paternity alleged and the punitive father, having the sole capacity to provide conclusive evidence by submitting to a parentage testing order, fails or refuses to do so.” (emphasis added)
Not only did H use condoms but also spermicide and a diaphragm when with clients.
Deane, Dawson & Gaudron JJ held at [16]:
            “Paternity is a serious matter, both for father and for child.  However, it is not clear that the         question of paternity should be approached on the basis that it involves a grave or serious         allegation in the Briginshaw v Briginshaw sense when what is at issue is the maintenance of          a child and the evidence establishes that the person concerned is more likely than anyone          else to be the father.  After all, paternity can be determined easily and, for practical          purposes, conclusively.  And now that that is so, it is difficult to see why, if a person who    could be the father declines to participate in procedures which will provide proof one way            or the other, the child’s rights to maintenance and support should none the less depend on             the biological fact of paternity being established on the basis that, so far as the putative            father is concerned, the biological fact involves an allegation in much the same category as     an allegation of moral or criminal wrong doing.”
Their Honours did some numbers about statistics, in particular G’s combination of 3 contraceptive methods, at [13]:
            If, on a given occasion, there were one chance in ten of any one of the measures failing (in the sense of not offering complete protection against the possibility of conception) and the reasons for the failure of any one measure were unrelated to the others, there would only be one chance in a thousand of all three failing at the same time.  Then on that statistical basis, if one assumes that H had intercourse with 250 clients during the period in which conception could have occurred (a figure towards the upper end of the range postulated by the trial judge, there would only be less than one chance in four that all three contraceptive methods would fail on at least one occasion.)  (If the probability of the combined contraceptive methods not failing on any given occasion is assumed to be 999 chances in 1000, or .999, then the probability of their failing at least once on 250 independent occasions is 1-(.999), or about .22.) whereas the evidence indicated that she had actually had unprotected sex with H on a number of occasions during the relevant period.  Of course that, says nothing about the statistical probability of conception either during unprotected voluntary intercourse with G or in the event of such a failure of contraceptive methods during intercourse with a client.  Moreover, there is a difference between statistical and legal probability.”
These presumptions are rebuttable:  section 24(5) Status of Children Act 1978 (Qld)[3], section 69U Family Law Act.       

Who is the mother?

The mother is always certain: Mater semper certa est
Since the time of the Emperor Justinian, in the 7th Century, a fundamental principle of our law has been that the woman who gives birth is the mother. This remains true for both naturally conceived children, and those conceived through assisted reproductive treatment, such as artificial insemination.           

While in the US courts have considered that there have been three potential bases for who is a parent, namely:
·      Who is genetically a parent
·      Who intended to be a parent
·      Who gave birth
The approach in Australia so far as the mother is concerned is clear- to determine who is the parent is based on the principle that the mother is the woman who gave birth. There have been some exceptions to this, but in general this principle remains true.
Where there has been a fertilisation procedure, or as described under the Family Law Act, an artificial conception procedure[4], the woman who gave birth remains the mother of the child.  What is clear when there has been an artificial insemination of a woman who is married that it is assumed that the woman who gave birth is the mother: see sections 17,18 Status of Children Act 1978 (Qld).
Where a donor ovum is used then the married woman shall be presumed for all purposes to have become pregnant as a result of the fertilisation of an ovum produced by her, into the mother of any child born as a result of the pregnancy and the woman who produced the ovum from which the embryo used in the procedure was derived shall be presumed, for all purposes, not to be the mother of any child born as the result of the pregnancy, which presumption is irebuttable: section 19 (2), (3) Status of Children Act.  Similarly the woman who gave birth will be presumed to be the mother under section 60H Family Law Act. 

If the woman had a female partner and donor semen has been used, then the woman who gave birth is the mother: section 19D Status of Children Act 1978 (Qld)  Where a donor ovum has been used then she is the mother and the donor is not: section 19E(2) Status of Children Act 1978 (Qld).  Similarly in those last two examples the woman who gave birth is the parent: section 60H Family Law Act. Note that the parenting presumptions where there is a female de facto partner are irebuttable presumptions: section 19F, although the presumption about the de facto partner’s consent is a rebuttable presumption with a reverse onus: s.19G Status of Children Act.
Who is the father?

If the man had sexual intercourse with the mother; that resulted in the conception of the child, he will be the father.
If ever there were any doubt, G v. H makes that plain. No matter the intent of the parties, or their relationship status, genetics triumph.
What if there has been an artificial conception procedure?

Is the husband or de facto partner of the birth mother a parent?
The answer is, ordinarily, yes.
Where there is an artificial conception procedure the man may be presumed to be the father, by  way of rebuttable presumptions, as follows:
Section of Status of Children Act
Section of Family Law Act
Birth Registration
Court finding

There is a limitation with birth records as they must be only birth certificates “under a law of the Commonwealth, a State or a prescribed overseas jurisdiction”.  As was noted by Ryan J in Ellison & Karnchanit [2012] FamCA 602[5], there has been no overseas jurisdiction prescribed for the purposes of section 69R[6].

Those who undertake surrogacy overseas often believe that by virtue of the overseas birth certificate that they are the parents of the child. The answer as seen in Ellison and Karnchanit is that an overseas birth certificate may not be evidence of parentage here.

If there is any doubt that there is a scheme between the Family Law Act and the various State and Territory Status of Children Acts as to parenting presumptions, one only need to compare, for example, the mirror wording of section 25 Status of Children Act 1978 (Qld) and section 69R Family Law Act.

Will the male partner be a parent when there has been an artificial conception procedure?
Subject to the comments about Groth & Banks, below, and subject to the rebuttable presumptions, a husband or male partner will only be a parent to a child where his wife or de facto partner gives birth and he falls fair and square within section 60H of the Family Law Act and the related provisions of the State or Territory legislation.  I will cover this in a discussion of section 60H below.

When will a female de facto partner be considered to be a parent?
If a woman was living in a lesbian relationship at the time of conception[7] i.e. the implantation[8] then either:
A.   If the birth mother conceived the child naturally, then the female partner is not a parent; or
B.    If the birth  mother conceived the child through an artificial conception procedure then the female partner will, subject to the discussion about Groth & Banks below, only be a parent if she falls fair and square within section 60H of the Family Law Act and/or the related State provisions.

Section 60H and related State provisions

Section 60H of the Family Law Act provides:

“Children born as a result of artificial conception procedures
             (1)  If:
                     (a)  a child is born to a woman as a result of the carrying out of an artificial              conception procedure while the woman was married to, or a de facto partner                    of, another person (the other intended parent ); and
                     (b)  either:
                              (i)  the woman and the other intended parent consented to the carrying                          out of the procedure, and any other person who provided genetic                                      material used in the procedure consented to the use of the material in                                   an artificial conception procedure; or
                             (ii)  under a prescribed law of the Commonwealth or of                                                               State or Territory, the child is a child of the woman and of the other                                     intended parent;
                                    then, whether or not the child is biologically a child of the woman                                         and of the other intended parent, for the purposes of this Act:
                     (c)  the child is the child of the woman and of the other intended parent; and
                     (d)  if a person other than the woman and the other intended parent provided                         genetic material--the child is not the child of that person.
             (2)  If:
                     (a)  a child is born to a woman as a result of the carrying out of an artificial              conception procedure; and
                     (b)  under a prescribed law of the Commonwealth or of a State or Territory,                          the child is a child of the woman;
                        then, whether or not the child is biologically a child of the woman,                                        the child is her child for the purposes of this Act.
             (3)  If:
                     (a)  a child is born to a woman as a result of the carrying out of an artificial              conception procedure; and
                     (b)  under a prescribed law of the Commonwealth or of a State or Territory,                          the child is a child of a man;
                        then, whether or not the child is biologically a child of the man, the child is              his child for the purposes of this Act.
             (5)  For the purposes of subsection (1), a person is to be presumed to have                                    consented to an artificial conception procedure being carried out unless it is                proved, on the balance of probabilities that the person did not consent.
             (6)  In this section:
"this Act" includes:
                     (a)  the standard Rules of Court; and
                     (b)  the related Federal Circuit Court Rules.”

The term “artificial conception procedure” is defined as in section 4 as including:
(a)  “ Artificial insemination; and
(b)  The implantation of an embryo in the body of a woman.”

What is clear is that Parliament did not intend that the creation of an embryo was an artificial conception procedure but it is the act of enabling a pregnancy to commence i.e. the conception of a child that is the critical element.  This is consistent with the decision by Judge Clare SC in LWV & Anor v LMH [2012]QChC 026, in which her Honour found that conception did not occur at the time of the creation of an embryo but occurred at the time of pregnancy i.e. at or about the time of an implantation of an embryo.

It is essential to be careful with dealing with case law concerning section 60H as the current section was largely rewritten in amendments in 2008.

Although the current section came about due to lobbying particularly by the New South Wales Government to ensure the recognition of children born to lesbian couples, what is clear from the first element in subsection (1) (a) is that the birth mother must be married to or a de facto partner of another person. This is gender neutral.  The relevant time for the de facto relationship is at the date of the artificial conception procedure, not the birth[9].

Paragraph 60H (1)(b) has alternate limbs.  The first is that the birth mother, the other intended parent and the donor consented to the use of the material in an artificial conception procedure.  This would ordinarily able to be proved by consent forms that are required by any IVF clinic.  This would apply in respect of any egg donor, sperm donor or embryo donor[10].

However with a home insemination, such as the use of either syringe or turkey baster, there may not be obvious documentary evidence of consent.

The alternative limb is that there is a prescribed law by which the child is the child of the woman and of the other intended parent.  The prescribed laws are set out in regulation 12C of the Family Law Act Regulations 1984.

Status of Children Act 1996
The whole
Status of Children Act 1974

10A, 10B, 10C, 10D, 10E, 13 and 14
Status of Children Act 1978
17, 18, 19, 19C, 19D, 19E
Artificial Conception Act 1995
The whole
Family Relationships Act 1975

10A, 10B, 10C, 10D and 10E
Status of Children Act 1974
Part III
Parentage Act 2004,
Status of Children Act
5A, 5B, 5C, 5D, 5DA, 5E and 5F

Beware to check the sections and that they are the correct ones. I recently looked at the Family Relationships Act 1975 (SA), where there is now no section 10D or 10E.  There is currently a Bill before the South Australian Parliament to amend sections 10B and 10C of the Family Relationships Act allowing de facto partners to elect, by regulation, with the result that the woman and her partner are the parents and that the partner conclusively presumed to have and caused the pregnancy.

In Queensland if the birth mother was married and there was artificial insemination either by sperm produced by a man other than a husband or a mixture including sperm produced by a husband, then a husband, by way of irebuttable presumption shall be presumed for all purposes to have caused the pregnancy and to be the father and the other man will not be: s.17 Status of Children Act.

The same applies where there is an implantation procedure and donor semen is used: s.18 Status of Children Act. 
Where an embryo is implanted in a woman then whoever produced the semen the husband is presumed, by way of an irebuttable presumption, to be the father and the birth mother is presumed to be the mother and the egg donor is not, also an irebuttable presumption: s.19 Status of Children Act.

Where the woman has a female de facto partner then the female de facto partner is presumed for all purposes to be a parent and the man who produced the semen has no rights or liabilities relating to the child: s.19C Status of Children Act.

Similarly if there has been an implantation procedure the man is not a parent if the man is someone other than the birth mother’s husband and the woman’s female de facto partner is presumed for all purposes to be a parent: s.19D Status of Children Act.

There may be a problem if the birth  mother in a lesbian relationship has not divorced her husband.

Where there has been a donor then the birth mother is presumed for all purposes to be the mother, her female partner to be a parent and the egg donor for all purposes is presumed not to be the mother.  The man who produced the semen similarly has no rights or liabilities to any child born as a result of a pregnancy for which the semen has been used: 19E Status of Children Act.

The effect of section 60H is therefore that the child is the child of the woman and of the other intended parent but not of the donor.

She wants a baby, he doesn’t: too bad”
In a number of recent cases I have had female clients who have wanted to have children. They have wanted to have a child, but their male de facto partners have not. Their partners typically already have children, have been through the Family Court process, and are paying child support. While they are happy for their partner to have a child (to satisfy their partner’s yearnings) they do not want the child as their own.

This is where things get tricky. If the parties reside in a de facto relationship, and the woman goes to a bar or more likely these days finds a man via a social media app like Tinder and gets pregnant, her partner will be presumed to be the father- but the presumption can be rebutted easily via a DNA test.

If however she decides that she will go through ART, then ART cannot proceed without her partner having had counselling and consenting in writing to the procedure[11]. As soon as he has consented, whether or not he wants to have a child, then the partner will be presumed, as an irebuttable presumption, to be the parent.

The choice for the desperate woman is then to:
     °     Give up
     °     Get pregnant by usual means from someone else
     °     Split up, and then pursue ART as a single woman. However, as seen in Groth and                         Banks,             this too has its risks.

Section 60H(2)

Section 60H(2) has a different test, namely that if the child was born to a woman after the carrying out of an artificial conception procedure and under the prescribed law of the Commonwealth, State or Territory, the child is a child of the woman then whether or not the child is biologically a child of the woman, the child is her child for the purposes of the Family Law Act.  Similarly if the woman gives birth following an artificial conception procedure and under a prescribed law of the Commonwealth or of the State or Territory the child is the child of a man, then whether or not the child is biologically his the child is his child for the purposes of the Family Law Act.

The laws are prescribed under reg. 12CA:
The whole
10B, 10C
Part III
11(2) and (3)
Status of Children Act 1978
5B, 5C, 5E

Section 60H(3)
Under s.60H(3) a man may be presumed to be the father, but only under a prescribed law.  There are no prescribed laws for the purposes of section 60H(3)(b).

Can a person be a parent under the Family Law Act when there has been an artificial conception procedure but they are not the birth mother or birth mother’s partner under section 60H?

Depending on who you listen to, the answer is yes.

There have been a series of disparate cases, usually involving surrogacy.

The cases seem to turn on:
(a)   Whether there is a national scheme;
(b)  Local legislation and approaches;
(c)   Biology and intent;
(d)  Comity.

First the easy one, comity:

Carlton & Bissett [2013] FamCA 143
Mr Bissett was a resident and citizen of South Africa when he undertook surrogacy there.  Under South African law Mr Bissett obtained a pre-approval order from a South African court, the effect of which was that when the children were born he was deemed to be the father.

Subsequently Mr Bissett fell in love with Mr Carlton and Mr Bissett and the twins moved to Sydney.

Mr Bissett sought that he be recognised as the parent.  There were three arguments.  The first argument was to seek to have the South African order registered with the Family Court as an overseas child order under section 70G of the Family Law Act.  Ryan J held the definitions of “parent” and “child” under sections 60F to 60HB:

have no application to Mr Bissett.  Simply put, whether he is the children’s parent needs to be determined in the first instance by the application of the laws where he was ordinarily resident and the child was domiciled (or origin) at the time of their birth; namely South Africa.[12] 

Her Honour found that the order met the definition of “overseas child orders[13].  Hopefully this puts paid to the proposition raised by at least one Registrar in the past that the court could not register an overseas surrogacy order because it was only able to register “like for like” orders.  Basically the argument went that if the Family Court of Australia could not make a surrogacy order then it could not register an overseas surrogacy order under section 70G.  Clearly the form of the South African order in which it was a pre-approval for surrogacy is not the type of order that the Family Court of Australia could ever make, but nevertheless according to her Honour met the definition.

However, the order was unable to be registered because South Africa was not a prescribed overseas jurisdiction. This is contained in schedule 1A of the Regulations.  Most American jurisdictions are listed there, for example Alabama and Wyoming[14], but be careful because many jurisdictions that we ordinarily think ought to be included there are not.  While New Jersey, New Zealand and Papua New Guinea are included, no Canadian province, nor England or Wales are. No European jurisdiction is included.

The second argument in Carlton & Bissett was to rely on section 69S of the Act whereby a court of a reciprocating jurisdiction had found that Mr Bissett was a parent.  This section required that the reciprocating jurisdiction was either within the meaning of section 110 of the Act or a jurisdiction mentioned in schedules 4 or 4A to the Regulations.  Schedule 4 is for those countries defined under the “Hague Child Maintenance Convention” and schedule 4A is where Australia has entered into an “international child support agreement”, for example with Finland.

South Africa was not a country within either of these schedules.  Section 110 covers jurisdictions with restricted reciprocity, meaning a country or part of a country outside Australia declared by the Regulations to be a jurisdiction with restricted reciprocity for the purposes of this section.  The jurisdictions set out in schedule 2 to the Regulations are the reciprocating jurisdictions for the purposes of section 110.  Here we have jurisdictions as far removed as Austria and Zimbabwe and now, at least, South Africa.

Her Honour held in effect that because the limited nature of section 110 relating to international maintenance orders then section 69S simply did not have application and must fail.

However for comity purposes her Honour found:[15]

            “It will be apparent that I have accepted that Mr Bissett is able to rely on the general          presumptions of parentage notwithstanding the provisions of section 60H and section 60HB,       both of which were inserted into the Act after the general presumptions.  Those provisions             are not directed to children born in another country to a person or people ordinarily    resident in that country at the time of conception and birth.”

What is unclear is whether an order made overseas has the effect under the comity principle that it ought to be recognised in Australia. Recent case law from Europe would seem to indicate that this is the approach to be taken, notwithstanding domestic law in the relevant countries banning surrogacy. European parents have travelled to the US for surrogacy; notwithstanding that surrogacy is illegal or not recognised back home. Courts in Spain, Germany and France have adopted the comity principle and for the benefit of the child, have recognised the US order.

Going overseas for surrogacy

When Australians undertake surrogacy overseas, as they commonly do, they:
(a)   Undertake surrogacy in a country where reliance is upon contract (as has occurred in the past, for example in India); or
(b)  Rely primarily on the making of an order in the best interests of a child as, for example, in the United States.

When Australians undertake surrogacy overseas they do so either lawfully (as is clearly the case for those, for example, from Victoria, Tasmania or the Northern Territory) or they do so unlawfully (as is clearly the case for those undertaking commercial surrogacy if they are from Queensland, New South Wales or the ACT all of which jurisdictions have laws of extra-territorial application)[16].  In four cases decided in 2011, concerning New South Wales and Queensland couples undertaking surrogacy in Thailand, Watts J questioned whether the intended parents were parents because of the parenting presumptions under the relevant Status of Children Act and of concern that what was done was illegal.[17]

In Ellison & Karnchanit [2012] FamCA 602 Mr Ellison and his wife Ms Solano undertook surrogacy in Thailand.  Mr Ellison and Ms Solano came from Queensland.  The first aspect of the case is that the DNA evidence was inadmissible.

Her Honour noted that she was not bound by the Thai birth certificate stating that Me Ellison was the father even though genetically he was the father.

Ryan J held that section 60H applies even with children born overseas whereas section 60HB (which deals with surrogacy orders made under prescribed law of a State or Territory) only covers orders made in the relevant State or Territory[18].  At the time of Ellison & Karnchanit there were no laws prescribed for the purpose of section 60HB, but they are now prescribed under Regulation 12CAA[19].

Ryan J formed the view that section 60H(1) is not intended to be an exhaustive definition and thus does not operate to exclude a person as a parent if his or her circumstances do not coincide with those identified in the section.[20]  Her Honour found that section 60HB does no more than say that if a relevant order is made by a State Court, then for the purpose of the Family Law Act it will apply.[21]

Relying upon the International Convention on the Rights of the Child, her Honour accepted submissions of the Australian Human Rights Commission that it would be contrary to the rights of the children for Mr Ellison not to be recognised as a parent where the evidence supports such a finding[22] and then found it was in the best interests of the children that an order be made.

Blake & Anor [2013] FCWA1

Mr Blake and Mr Marston were the intended parents. They went to India.  Mr Blake applied for step-parent adoption of the children on the basis that Mr Marston was the father of the children.  The critical issue was whether Mr Marston could be considered a parent.  The children were born as the result of surrogacy in India following a contract being entered into between Mr Marston and a surrogate and her husband.  Crisford J found that the contract was binding under Indian law and that the surrogate and her husband relinquished all their rights to any children born of the surrogacy procedure.  There was no evidence about whether the surrogacy laws were commercial or otherwise.

The children were granted Australian citizenship,  following DNA tests showing that Mr Marston was the genetic parent.  At the time of the judgment Mr Blake, Mr Marston and the children were living overseas.

Contrary to Ellison & Karnchanit her Honour noted that the court was dealing with different legislation and a different factual matrix which included a legal opinion about the validity of the arrangement in India.[23]

Her Honour noted that parent was not defined under the Adoption Act 1994 (WA), but that there was a definition of parent under the Interpretation Act 1984 (WA), being an inclusive definition, including:

(a)   A parent who is a parent within the meaning of the Artificial Conception Act 1985
(b)  Be a person who is an adoptive parent under the Adoption Act 1994
(c)   A person who is a parent in a relationship of parent and child that arises because of a parentage order under the Surrogacy Act 2008.

The Artificial Conception Act is the Western Australian version of the Status of Children Act and the effect of that would appear that the surrogate and her husband were the parents and that Mr Marston, as the sperm donor, shall be conclusively presumed not to have caused the pregnancy and is not the father of any child.

As her Honour noted, the Artificial Conception Act was intended to apply to “an artificial fertilisation procedure carried out before or after the commencement of this Act either within or outside Western Australia” and as such would appear to apply to the procedure carried out in India.  Marston would therefore not be included in the definition of a parent provided in the Interpretation Act.

However as her Honour noted, that definition was not exhaustive.  Her Honour stated:[24]
            In the Court’s view, there is scope to enlarge the definition and determine what other        people might be considered a ‘parent’ or a ‘father’ within its ordinary meaning.  Unless the       court so determines, a person in Mr Marston’s position would not be considered a birth    parent for the purpose of the Act.”

Her Honour then considered the various parenting presumptions under the Family Law Act.  None of them applied.  The Indian lawyer noted that the surrogate has no rights over the children as she has relinquished all her parental rights in the agreement.  Counsel for the State Department submitted that the court was able to take into account any declaration of parentage made by Mr Marston under a law of the Commonwealth the law of Australian State or Territory including documents provided to the Department of Immigration for the purpose of obtaining Certificates of Citizenship.  However, the documents signed by Mr Marston in support of the Certificate of Citizenship were not provided.  Her Honour noted that there wasn’t strict compliance with the Family Law Regulations as to the DNA testing as the containers of bodily samples had not been appropriately labelled[25]. 

Her Honour stated:[26]

              “One overarching consideration is that since 2010 Mr Marston and Mr Blake have acted as parents to these children.  They have fulfilled that role for over two years without input from any other person who might be seen as a parent… the Act does not specifically define a father or a parent of the child to be adopted the Interpretation Act does provide a definition, albeit not an exhaustive definition.  The examples that are given do not encompass Mr Marston.  In circumstances where provisions enlarge rather than restrict here it can’t be said that the provisions operate to exclude a person as a parent if his or circumstances do not coincide with those identified in this section.  To suggest that Mr Marston is anything other than a parent or a father within its ordinary meaning is to turn a blind eye to the reality of ‘family’ in present day society.  It is also turning a blind eye to the reality of the situation presently before the Court.  The objective facts surrounding the birth and the manner in which various agencies have treated those circumstances couple with the fact of the genetic father acting in that role since the birth of the twins points to the use of an expanded definition of parent.  To adopt any other interpretation would serve no purpose in addressing any public policy issues if, indeed, any exist.  It would serve no purpose in enhancing the future welfare and best interests of these children… there is no valid reason to disadvantage children of surrogacy arrangements.”(emphasis added)

Mason & Mason [2013] FamCa 424

A gay couple, Mr A and Mr B Mason undertook surrogacy in India, resulting in the birth of twins.  Mr A Mason entered into a surrogacy arrangement in India.

The issue in question was whether either of them were the parents.  There was no reference to Re Blake.

Ryan J held[27]:

            Spread across different divisions in Part VII there are a number provisions to do with     parentage, presumptions and declarations of parentage.  Those in division 1 subdivision (D)    operate to irrebuttably deem a child for the purposes of the Act, in the circumstances there             identified, the child of designated people.  Those in Division 12 subdivision D create     rebuttable presumptions for the purpose of the Act.  Notably by little s69U it is             acknowledged that two or more presumptions under that subdivision may apply, in which case (excluding s69S(1)) it is for the Court to determine which presumption should      prevail.  Then in division 12 subdivision E, the court is empowered to issue a declaration of          parentage that is conclusive for the purposes of all laws of the Commonwealth.  In essence          there is a scheme which operates so that, for the purpose of the Act or Federal law, children           may variously be deemed, presumed or declared the child of a person the effect of section 12          of the Status of Children Act 1986 (NSW)… is that declaration of parentage made under the         Act will be recognised by the State.”

Her Honour considered sections 60H and 60HB.  Her Honour referred to the Status of Children Act as the “Children’s Act” her Honour took a contrary view to that in Ellison & Karnchanit, stating that there was a scheme of who is a parent under the Status of Children Legislation and the Family Law Act.  Her Honour stated[28]:

            “It follows, that without the benefit of argument, a cautious approach to the issue is            necessary.  However, it is my preliminary view that for the purposes of the Act the 2008        amendments, events and intentions by Parliament that the parentage of children born as a         result of artificial conception procedures or under surrogacy arrangements will be     determined by reference to those provisions and not the general parentage provisions.              This interpretation achieves, on a state by state (and territory) basis, a uniform system for             the determination of parentage.  [34]  The effect of this is that unless an order is made in            favour             of the applicant pursuant to the surrogacy Act, the provisions of the Act do not        permit this Court to make a declaration of parentage in his favour.  Thus, on reflection, I’m    inclined to respectfully agree with Watts J in Dudley & Anor and Chedi [2011] … where…      his Honour determined that ultimately state law will govern the determination of parentage            [if children born under surrogacy arrangements] and that state law will be recognised by         federal law.[35]  This is only to the extent that the laws of a state or territory are prescribed             laws for that provision.  [36] Although there is evidence which may tend to indicate that this          was a commercial rather than altruistic surrogacy arrangement, the evidence is not so clear       that a finding in relation to the nature of the agreement needs to be made.  If that is an        issue, it is one more appropriately dealt with by the Supreme Court should an application           for a parentage order or adoption be made.” (emphasis added)

In other words it would appear that if you are going overseas for surrogacy then, according to that analysis you are not the parents.  The surrogate and her partner are.

Green-Wilson & Bishop [2014] FamCa1031

Mr X Green-Wilson and Mr Y Green-Wilson were a gay couple who undertook surrogacy in India.  They lived in New South Wales but moved to Victoria so they could undertake surrogacy overseas.  A child Y Green-Wilson was born as the result of a commercial surrogacy arrangement.  Mr X Green-Wilson provided his sperm.  The egg was supplied by an anonymous donor in the Ukraine.  Johns J held that although Mr X Green-Wilson was the biological father[29]:

            That fact alone does not mean that he is a parent pursuant to the provisions of the Family            Law Act.  The Act provides no definition of ‘parent’, save as respect to adopted children.            Clearly, that definition is not applicable in this case.  The status of persons in the position of           the applicants (as well as other non-traditional families) has long vexed this court…”

Her Honour stated at[30]:

            “Whilst the provisions of s60H of the Act have been amended since the observations made            by Guest J in Re Patrick [2002] and Brown J in Re Mark[2003] so as to clarify the status of        parties undergoing artificial conception procedures, including same sex couples undergoing          such procedures, they do not clarify the position of people such as the applicants who have         undertaken artificial conception procedures in the context of a commercial surrogacy            arrangement in another jurisdiction, in this case, India.”

In referring to section 60H(1) her Honour said[31]:

            “Hence, while Mr X Green-Wilson provided his genetic material to enable the artificial      conception procedure to occur, with the express intent that he and his partner, Mr Z Green-        Wilson parent any child born of that procedure, pursuant to the provisions of s60H(1)(d),             the child the product of that procedure is not deemed to be a child of Mr X Green-Wilson.”

It was submitted that section 60H did not extend extra-territorially and therefore did not apply to the surrogate or her husband whom were resident in India and undertook the artificial conception procedures there.

The applicants relied upon section 69ZE, which deals with the extension of the operation of part VII of the Act to the States and Territories of Australia.  Relying on that provision it was submitted that the language in 60ZE confines the operation of Part VII to the States and Territories of Australia and therefore did not apply to India.

Walls J rejected that position and found that section 69ZE did not place limitations on the operation of Part VII[32]:

            “If one were to adopt that position, all orders made under Part VII could only be made with          respect to children present in the states or territories of Australia referred to in s69ZE.  That     approach is clearly inconsistent with provisions of s69E of the Act which enlivens the         jurisdiction of the Act with respect to a child who is an Australian citizen or is ordinarily           resident in Australia on the day proceedings are commenced.  It is not necessary for a child   who is an Australian citizen or ordinarily resident in Australia to be present in Australia on           the day Part VII proceedings are commenced.” 

He Honour noted also that Mr X Green-Wilson be named as the father on the child’s birth certificate did not fall within the presumption under section 69R of the Act because India was not a prescribed overseas jurisdiction as no overseas jurisdictions were in fact prescribed.

Her Honour noted section 60HB of the Act dealing with children born under surrogacy arrangements and prescribed laws.  She noted that the prescribed law in Victoria was section 22 of the Status of Children Act 1974 (Vic) and that a requirement of that section and of section 20 of that Act was that conception must have occurred as a result of a procedure carried in Victoria with the assistance of a registered ART provider after patient review panel approval.  Therefore an international commercial surrogacy arrangement as was entered into would not invoke the provisions of section 22 of the Status of Children Act and accordingly section 60HB would not apply.

The question raised by the applicants was in circumstances where neither State nor Commonwealth legislation makes provision for the determination of parentage in commercial surrogacy arrangements and where the registration of Mr X Green-Wilson on the child’s Indian birth certificate is not determinative, who are the child’s parents?  Her Honour considered the decision in Mason & Mason and in particular the intention of having a uniform system for the “determination of parentage”.

Walls J held[33]:

            “That may be so in States or Territories where there is legislation specific to the issue of    determination of parentage in respect of such surrogacy arrangements.  However it does not   resolve the issue of what is to occur for children born in States that do not have the benefit             of such provisions.

            In circumstances where the State legislation is silent with respect to the determination of     parentage of children born of commercial surrogacy procedures (which are not prohibited             in Victoria), I am satisfied that it is appropriate to make a declaration with respect to a      child born of such procedures who is now living in Victoria.   To do otherwise would be to      elevate public policy considerations (as to eh efficacy or otherwise of commercial surrogacy        arrangements) above a consideration to the welfare of children born of such arrangements.          In my view, the interests of the child must outweigh such public policy considerations.

Her Honour then took into account the best interests of the child and determined that it was appropriate and in the child’s best interests that she make a declaration confirming that Mr X Green-Wilson is a parent of the child.

Groth & Banks [2013] FamCa430

This is a case that has thrown IVF clinics into a spin.

Mr Groth and Ms Banks were in a relationship.  They split up.  They had a property settlement.  Some years later Ms Banks told Mr Groth that she wanted to be a mother and wanted his sperm.  He agreed to be a sperm donor.

They went to a clinic and, along the lines of Verner & Vine [2005] FamCa763, they told the clinic that they were a couple.  They weren’t.  Mr Groth signed a form required under Victorian law stating that he wasn’t a parent, but was a donor.

The child was conceived and born.

Mr Groth had no involvement with the child until one day his partner observed messages on his mobile phone.  He then made application to the Family Court seeking declaration that he was a parent.  Ms Banks submitted, not surprisingly, that Mr Groth could not be a parent because under the Status of Children Act (Vic) she was the woman who gave birth, she was the only parent and his role was merely that of donor.

Mr Groth’s argument was ingenious:
·      He was undoubtedly the child’s biological progenitor
·      The word parent is not exhaustively defined in the Family Law Act
·      By use of its language Part VII of the Family Law Act envisages that there are two parents, that is, the biological progenitors of the child unless they are otherwise displaced by express provisions in the Family Law Act
·      Section 60H does not apply where the mother was not married or in a de facto relationship
·      The Status of Children Act does not apply because section 79 of the Judiciary Act 1983 (Cth) does not bring it into operation and alternatively section 109 of the Constitution provides that the Commonwealth law prevails in the event of inconsistency between the Commonwealth and State laws.

Cronin J accepted this argument.  He declined to rule on the issue of intention namely as to the form required under the State law, saying that it was irrelevant given section 109 of the Commonwealth Constitution.  His Honour stated[34]:

            “(The applicant’s) argument is that the course of conduct leading to the conception of the   child is clearly distinguishable from a donor who does not wish to have an involvement in           the child’s life.  Concerns of public policy, such as those raised by Guest J in Re Patrick…             that unknown sperm donors could be considered ‘parents’ under such an interpretation become irrelevant because the Act does not impose obligations on an unknown person who     has donated biological material.

            Thus, the interpretation of ‘parent’ in the Act allows each case to be determined on its        particular facts.

            The fact that a child has two parents who are her or his biological progenitors permeates the language of the Act.  The whole Commonwealth statutory concept is outlined in the Part          VII of the Act is one in which biology is the determining factor unless specifically excluded by law …

            Part VII of the Act contains multiple references to the parents of the child as ‘either’ or       ‘both’.  These can be found at s.60B(1)(a), 60B(2)(a) and (b), 60CC(2)(a), 60CC(3)(d)(i),         61C(2), 65C(a), 66B(2), 66F(1) and 69C(2).  The logical presumption which follows is that           the legislature envisaged two parents when dealing with parental responsibility under the Act. 

            The applicant fits that presumption in the Act of who is a parent.  He is the biological          progenitor and one of two people who set about a course of conduct with the intention of            fathering a child.  On the face of the language in the Act and the facts here, a logical           conclusion would be that the applicant is the parent of the child.  If one turns to the sections          of the Act that displace biological progenitors as parents, little changes.”

Discussion as to Groth & Banks

It might be seen that the impact of Groth & Banks immediately applies to single women who are relying on sperm donors.

If the test is that of biology and section 60H does not apply, does that mean a single woman who is relying on an egg donor and a sperm donor is not the mother but that a known egg donor could be the mother?  Is it a case of we need to rely on intent?

If a single woman similarly relies on a known embryo donors – are they the parents and she is not?

Was Ryan J correct in Mason & Mason in saying that there is a statutory scheme between the Status of Children legislation and the Family Law Act?  There are numerous references in each piece of legislation either directly or by inference to the other, for example in Status of Children Legislation there is a reference to prescribed overseas jurisdictions – but there is no prescribed overseas jurisdiction under the Status of Children Legislation.  The prescription is only under the Family Law Regulations which in turn rely on the Family Law Act.

But the real question is – is this what Parliament intended?  Did Parliament intend someone like Mr Groth to be a parent?  In my view the answer is simple and it is no.  When the amendments were made to the Family Law Act to amend section 60H, Parliament simultaneously amended the Child Support (Assessment) Act.  The bills ran parallel, and as Hansard reveals changes to the Child Support (Assessment) Act were suggested after the relevant Senate committee had considered the ability to recognise lesbian couples (which resulted in the amendment to section 60H).  Section 5 of the Child Support (Assessment) Act was amended in those 1998 amendments and provides in respect of the definition of “parent”:

            “(a)     When used in relation to a child who has been adopted - - means an adoptive parent                      of the child; and
            (b)       When used in relation to a child born because of the carrying out of an artificial                              conception procedure - - means a parent who is a parent of a child under section                                 60H of the Family Law Act; and
            (c)        When used in relation to a child born because of a surrogacy arrangement - -                                 includes a person who is a parent of the child under section 60HB of the Family Law              Act 1975.”

In other words if Cronin J is correct and Mr Groth is a parent under the Family Law Act could he have his cake and eat it too?  Namely he is not a parent under section 60H of the Family Law Act and therefore has all the benefits that come from parental responsibility but has no obligation to pay child support because he is not a parent under section 60H of the Family Law Act.  Surely that is not what Parliament intended.  Surely Parliament intended a consistent definition in both statutes as stated in Newbold & Others v Coal Authority [2013]EWCA Civ584, [2014]1 wlr 1288:
            “We assume that Parliament in the case of legislation… would have intended a sensible…             result.”
We then come to s.29(2) of the Child Support (Assessment) Act 1989 (Cth) and in particular that someone is a parent because a federal court, or a court of a State or Territory or a court of a prescribed overseas jurisdiction has found expressly or by implication that someone is a parent.

Bateman & Kavan [2014] FCCA 2521

A declaration was sought that Mr Kavan was a liable parent for the purposes of the Child Support (Assessment) Act 1989.  He originally sought dismissal of the application on the basis that he was not in a de facto relationship with the applicant at the time of artificial insemination and was therefore not a deemed parent within section 60H.  Both the Child Support Registrar and the Human Rights Commission intervened.  It was found by consent Mr Kavan was determined to be the father.  The Human Rights Commission submitted:

            Following amendments to s29 of the CSA Act introduced by the Same-Sex Relationships    (Equal Treatment and Commonwealth Laws – General Law Reform) Act 2008 (Cth)…, there             is an ambiguity in the CSA Act about how the child support Registrar… is to determine       whether a person is a parent of a child born because of the carrying out of an artificial   conception procedure.

            In particular, since 1 July 2009, whether or not a person is a parent under section 60H of the Family Law Act (Cth)(dealing with children as a result of artificial conception             procedures) is one of a number of factors that the Registrar must evaluate in determining whether he or she is satisfied that a person is a parent of a child.

            The amendments introduced by the Reform Act mean that older cases such as B v J (1996)             Flc92-716 and W v G (1996)(20 FamLR 49) which looked only at the definition of ‘parent’          in s5 of the CSA Act can be distinguished.  On one view, the new structure of s29 in the       older cases about s5 give rise to an ambiguity about how to determine whether a person is a       ‘parent’ for the purposes of the CSA Act.

            The ambiguity in the CSA Act can be resolved by adopting and an interpretation of ‘parent’           in the CSA Act that is consistent with Australia’s international law obligations under the          convention on the rights of the child.

            The commission submits that such an interpretation would involve the registrar taking the             following steps when determining whether the person is a parent of a child born as the        result of artificial conception procedures.  First, to the extent that s60H of the Family Law Act applied to either deem a person to be a parent or not to be a parent, the Registrar would       make a determination consistent with the requirements of that section.  This would be          consistent with an object of the definition of ‘parent’ in s.5 that the answers given by an      application of s60H are to be binding.  Secondly, to the extent that s.60H of the Family Law          Act does not apply (i.e. to the extent that s60H says nothing about whether a particular       person is a parent) the Registrar would consider whether any of the other criteria in      s29(2)of the CSA Act apply.

            This interpretation would allow consistency in the definition of ‘parent’ between the CSA    Act and the Family Law Act.  As a result, it is more likely to promote a child’s right under         Article 27(4) of the CRC to recover maintenance from his or her parents.” 

Section 29(2) of the Child Support (Assessment) Act 1989 provides:

(2)  The Registrar is to be satisfied that a person is a parent of a child only if the Registrar is satisfied:

                     (a)  that the person is or was a party to a marriage and the child was born to                           the person, or the other party to the marriage, during the marriage; or

                     (b)  that the person's name is entered in a register of births or parentage                                   information, kept under the law of the Commonwealth or of a State,                            Territory or prescribed overseas jurisdiction, as a parent of the child; or

                     (c)  that, whether before or after the commencement of this Act, a federal court,                        a court of a State or Territory or a court of a prescribed overseas                                               jurisdiction has:

                              (i)  found expressly that the person is a parent of the child; or

                             (ii)  made a finding that it could not have made unless the person was a                         parent of the child;

                                 and the finding has not been altered, set aside or reversed; or

                     (d)  that, whether before or after the commencement of this Act, the person has,                        under the law of the Commonwealth or of a State, Territory or prescribed                        overseas jurisdiction, executed an instrument acknowledging that the                                   person is a parent of the child, and the instrument has not been annulled or                     otherwise set aside; or

                     (e)  that the child has been adopted by the person; or

                      (f)  that the person is a man and the child was born to a woman within 44                               weeks after a purported marriage to which the man and the woman were                             parties was annulled; or

                     (g)  that the person is a man who was a party to a marriage to a woman and:

                              (i)  the parties to the marriage separated; and

                             (ii)  after the parties to the marriage separated, they resumed cohabitation                                 on one occasion; and

                            (iii)  within 3 months after the resumption of cohabitation, they again                                           separated and afterwards lived separately and apart; and

                            (iv)  the child was born to the woman within 44 weeks after the period of                                     cohabitation but after the dissolution of the marriage; or

                     (h)  that the person is a man and:

                              (i)  the child was born to a woman who cohabited with the man at any                                       time during the period beginning 44 weeks and ending 20 weeks                                        before the birth; and

                             (ii)  no marriage between the man and the woman subsisted during any                         part of the period of cohabitation; or

                      (i)  that the person is a parent of the child under section 60H or section 60HB of the                           Family Law Act 1975 .

The Human Rights Commission went on to submit:

            The definition of ‘parent’ in the CSA Act, particularly as it relates to children born as a      result of artificial conception procedures, relies on the operation of the Family Law Act.  As a result, in order to understand the definition of ‘parent’ for the purposes of the CSA Act, it            is first necessary to examine who can be a parent for the purposes of the Family Law Act.”

The Human Rights Commission relied on Groth & Banks, and other cases to say “section 60H is not an exhaustive statement of whether a person is a parent of a child born as the result of an artificial conception procedure.  In particular section 60H does not deal at all with the man who provided his sperm where a child is born to a single woman as the result of an artificial conception procedure[35].  The Commission stated:

            “If a woman who is not married and not in a de facto relationship has a child as a result of           an artificial conception procedure, then section 60H of the Family Law Act does not assist     in determining the status of the man who provided his sperm for use in the procedure.  In order to assess the status of the man in these cases, it is necessary to return to the ordinary      meaning or parent discussed in Tobin & Tobin, and consider whether he has ‘begotten’ with            a child.  Several cases have noted that a man can be a parent of a child born as the result of          an artificial conception procedure even if section 60H of the Family Law Act does not    apply.              Importantly these decisions suggest that a ‘mere’; sperm donor, and particularly an             anonymous sperm donor, would not be a parent for the purposes of the Family Law Act.    There are good public policy reasons for this including consistency with the general    expectations arising out of State and Territory regimes dealing with sperm donation.

            A common element in these decisions is that a relevant factor in assessing whether someone          has ‘begotten’ a child as a result of an artificial conception procedure is an intention to          become a parent… these cases indicate that the definition of parent for the purposes of the Family Law Act in cases of children born as a result of artificial conception procedures of        the Family Law Act in cases of children born as a result of artificial conception procedures      is wider than the class of people covered by section H.

            The importance of intention in cases involving artificial conception procedures is reinforced          by considering the position of the other intended parent under the section 60H(1) of the           Family Law Act.  The partner of the woman who gives birth to a child as a result of an       artificial conception procedure is referred to in the legislation as the ‘other intended        parent’.  That person will only be considered to be a parent if he or she consented to the             carrying out of the procedure[36].”

The Commission submitted[37]:

            There have been amendments to the CSA Act since the decisions in B v J and W v G.  In     particular, the Reform Act inserted section 29(2)(i) into the CSA Act with effect from 1 July           2009.  The effect of this change was that a person’s status as a [parent under section 60H of          the Family law Act was included as one of the things that the Registrar needed to consider        in weighing up whether he or she identified that the applicant was apparent.  This can be seen from the operation of section 29(3): if two or more paragraphs of section 29(2) are    relevant to a particular application those paragraphs, or some of them, conflict with each          other, then the paragraph that appears to the Registrar to be the more or less likely to be the         correct presumption prevails. 

            This amendment seems to create an ambiguity between section 29 and section 5.  Section 29           suggests that a person’s status under section 60H of the Family Law Act can be weighed            against other criteria to determine whether the person is a ‘parent’ for child support          purposes.  The interpretation given to section 5 in B v J and W v G suggests that a person’s           status (or non-status) under section 60H is determinative of whether a person is a parent for             child support purposes.

            The Commission submits that this ambiguity could be resolved by an interpretation that     involves the Registrar taking the following steps when determining whether the person is a   parent of a child born as a result of artificial conception procedures.  First, to the extent     that s.60H of the Family Law Act applied to either deem a person to be a parent or not to be a parent, the Registrar would make a determination, consistent with the requirements of             those sections.  This would be consistent with an object of the definition of ‘parent’ in          section 5 that the answer is given by an application of section 60H are to be binding.            Secondly, to the extent that section 60H of the Family Law Act does not apply (i.e. to the      extent that section 60H says nothing about whether a particular person is a parent) the   Registrar would consider whether any of the other criteria in section 29(2) applies.

            Such an interpretation would allow consistency in the definition of ‘parent’ between the       CSA Act and the Family Law Act.

            Section 7 of the CSA Act provides that, once the contrary intention appears, especially when           it’s used in the CSA Act and Part VII of the Family Law Act, have the same respective     meanings as in part VII of the Family Law Act.  This tends to support an interpretation of section 29 of the CSA Act that would permit a person who is a parent for the purposes of the   Family Law Act to also be a parent for the purposes of the CSA Act (provided at least one of the criteria in section 29(2) of the CSA Act is satisfied).

            For the reasons set out in the following section, the interpretation described in paragraph … above would also be more likely to promote a child’s right under article 27(4) of the CRC   to recover maintenance from his or her parents.”

The applicant submitted that the definition of parent under section 5 of the Child Support (Assessment) Act 1989:

            “It is not exhaustive in that in it applies only in certain situations.  Clearly, this definition of            ‘parent’ is not a closed class or the vast majority of parents would be excluded from     liability.  It relates only to bringing in adopted children, children born via artificial             conception and children born from a surrogacy arrangement, in circumstances where a       child’s adoptive, non-biological AI or non-surrogate parent might otherwise be excluded             from liability.

            The definition of ‘parent’ does not include a natural parent or a parent who has     acknowledged being a parent by signing the birth certificate.  That is the case, with [X]’s father who has signed his birth certificate.  Therefore the definition is inclusory rather than            exclusory.  It is not an exhaustive list of who may be a liable parent.  Without a doubt, the        definition is intended to include ‘intended parents’ who accept the responsibility of parenthood but might otherwise not be liable rather than to exclude a parent who is without      a doubt a natural parent and would in all other circumstances be a liable parent.  This    section does not include the word ‘only’ nor ‘and no other person’ which one would expect            if only those persons could be a ‘parent’ for the purposes of the Assessment Act.  The plain     meaning of the definition is to bring in persons not to exclude them… it is the finding of       Justice Fogarty in B v J… which it is submitted is in error: ‘…it is the use in s.5 of the        Assessment Act of the term ‘Means’ which confines an artificial conception procedure ‘parent’ to a parent under section 60H of the Family Law Act.  The effect of that provision,            is I have said, is that where a child is born as a result of an artificial conception procedure,       for the purposes of the child support legislation, only s.60H parents are parents of the             children’.

            However, Justice Fogarty goes on to say:

                        ‘However, there is no corresponding provision in the Family Law Act which would                        exclude the biological parent from otherwise being regarded as a parent.  That is to                  say that it is not clear that the provisions of section 60H do not enlarge, rather than                       restrict, the categories of persons who are regarded as the child’s parents.’

            However, he again falls into error in saying:

                        ‘In the case of the Assessment Act it is the word ‘means’ which makes it clear that              the provision is exhaustive.  Prima facie, section 60H is not exclusive, and so there                  would need to be a specific provision to exclude people that otherwise would be                             parents.’

            Justice Fogarty falls into error because the section 5 definition is not exhaustive of the        categories of ways in which a person may be a parent for the purpose of the Assessment Act.

            B v J can be distinguished from the present case in that it involved a same sex couple, both            of whom were available to support the child.  B v J and W v G are at odds with cases where        biological fathers sought to spend time with children.  Kemble & Ebner [2008]       FamCA579… and Groth & Banks [2013] FamCA430… How can it be said as a matter of         public policy children have a right to know the biological parent but at the same time, those    same children do not have the right to be maintained by that parent.  The net result is that Applicants for time suceed whereas applicants for financial support fail?”

The Child Support Registrar submitted that section 5 of the Child Support (Assessment) Act provided an exhaustive definition of the meaning of “parent” with respect to the children it describes for the purposes of the Assessment Act.  The Registrar noted that the mother’s primary contention was that she and the father were in a de facto relationship such that the father was a “parent” of the child within the meaning of section 5 because he would be a parent of the child under section 60H.  The Registrar noted that if the Court didn’t accept that they were in a de facto relationship then the mother argued in the alternative that because the respondent’s name was entered as the father of the child on the birth certificate in New South Wales then the presumption in section 69R of the Family Law Act applied and ought not to be overridden.  The Registrar took the view that B & J was correctly decided and stated that section 69R of the Family Law Act did not apply to the Assessment Act, was not consistent with the orthodox principles of statutory construction nor the explanatory memorandum to the Family Law Amendment Bill 1987, which became the Act which inserted section 69R, and in any event section 69R was merely a presumption and not conclusive.

The Registrar further said:

            “Finally, even if this were not the case and the general presumptions section 69R of the FL            Act was properly considered to be in conflict with the definition of ‘parent’ then section 5 of       the Assessment Act (and not just directed towards the matters relevant to that presumption             in the FL Act), there cannot prevail over the specific definition of ‘parent’ in the Assessment Act: generalia specialibus non derogant (where there is a conflict between general and     specific provisions, the specific provisions prevail)…”

Harman J held[38]:

            “To the extent that it is submitted the provisions of the Family Law Act are irrelevant to a determination of parentage for the purpose of the Child Support (Assessment) Act I reject       the submission.”

His Honour held that section 29 of the Assessment Actclearly takes the issue beyond the presumption of parentage under the Family Law Act[39], and in particular[40]:

            “I am conscious that section 29(2)(d) would elevate the registration of birth in the father’s             inclusion upon the child’s birth certificate as ‘father’ beyond a mere presumption under the           Family Law Act.”

His Honour rejected the Registrar’s submissions and adopted the submissions of the Australian Human Rights Commission in totality[41].

His Honour went on to say[42]:

63.  The Australian Human Rights Commission argues, and I accept, that  provides nothing more than a regime by which parties to a de facto relationship, at the time that a child is conceived by artificial conception, are both deemed to be parents of a child. The “deemed” parentage is, to some extent, a legal fiction.
64.  The reference to such a deeming provision as a “legal fiction” is not intended in any way to be offensive to the partner in such relationships who is not a donor of genetic material. The provision is intended for cogent, sound and appropriate public policy reasons to acknowledge both partners as “parents” when neither is “obviously” a parent as neither is a biological or adoptive parent.
65.  This legislative recognition of a “deemed” parent potentially sits somewhat uncomfortably with a focus upon adoptive or biological parentage. But it is a law enacted by Parliament and thus creates a category of parent that is legally recognised though not “traditionally” so.
66.  The means of young [X]’s conception might be described as “nontraditional”. I am loath to use terms such as “nontraditional” in reference to a means of conception or a relationship particularly when the use of such language in other contexts has led to most disastrous and unfortunate consequences, such as the reference in some legislation, thankfully not Australian, to “traditional” relationships and the persecution of those who do not fall within some normative and undefined concept of what is “traditional”. There is nothing to be gained from using such terminology.
67.  There is a simple scientific reality in this case. Mr Kavan provided the genetic material ( sperm ) which fertilised Ms Bateman’s genetic material (egg) and thus led to the eventual birth of this child.
68.  It is a simple reality that in this day and age children can be and are conceived in a variety of ways starting with but not limited to heterosexual vaginal intercourse. It is not the act of intercourse, however, which leads to conception or “begetting”. Intercourse can occur without conception (through use of birth control or contraception) or infertility. Heterosexual vaginal intercourse is simply one of many mechanical means of or catalysts to the act of conception.
69.  Medical science has moved well beyond such methods of conception. Children have, for well over 35 years, been born as a consequence of artificial conception procedures. More recently conception and child birth via surrogacy has become more common.
70.  Having the means to do something and the advisability of doing it, as Oppenheimer realised after atomic bombs were dropped on Japan, are entirely different propositions. The advisability of and a consideration of the consequences of that which can be are separate and distinct from the capacity to do.
71.  I do not propose to engage in the controversy regarding the latter of the above two methods of conception (surrogacy). Clearly, they are matters that require and indeed cry out for some public discourse to appropriately balance those matters within a social and legal context rather than simply to stand by idly wringing one’s hands saying “what is to be done?” or to assume that because once can procure children by surrogacy, including commercial surrogacy, that this makes it desirable or acceptable to do so.
72.  The “traditional” method of conception, heterosexual vaginal intercourse, as the sole definition of parentage is perhaps as relevant in 2014 as the “traditional” model of relationship is to defining human interaction (noting that whenever the term “traditional relationship” is used it would appear to be left deliberately undefined to allow its use as an instrument of persecution and oppression on a case by case basis).
73.  Change happens over time and the law needs to be conscious of and responsive to change. As was opined by Oliver Wendell Holmes in “The Path of the Law”:
o   “It is revolting to have no better reason for a rule of law than that it was so laid down in the time of Henry IV. It is still more revolting if the grounds upon which it as laid down have vanished long since, and the rule simply persists upon blind imitation of the past”
74.  To illustrate change one might examine the bases of jurisdiction in parenting disputes. Absent the referral of powers by States in 1987 the basis of this Court’s jurisdiction would be confined to the constitutional heads of power of “marriage” and “matrimonial causes”. This limited basis of jurisdiction reflects that which was relevant at the time of the drafting of the Constitution in 1900 when the only legally recognised and only socially approved form of relationship was a marriage between a man and a woman and children born within wedlock. Thus, until relatively recent times (1987), children born “outside of wedlock” (such as a child born to parties to a de facto relationship) were treated differently and treated differently from State to State.
75.  Since 1900 society has moved a great deal forward. There are now a variety of different relationships, all of which are equally valid and as diverse and different.
76.  Relationships should be the last and ultimate domain of the private. Each relationship is authentic and genuine to the people within it and anything that comes from without is judgment.
77.  Relationships ought not to be categorised as abnormal. In that regard and not entirely flippantly Derek Jarman had commented:
“heterosexuality isn’t normal it’s just common”
78.  To take the view that there is or should be a traditional or normative relationship or prescribing a particular model of family which is preferred as acceptable socially or otherwise is a manifestation of hierarchy and privilege. It is also offensive to all who do not fall within that norm. That includes not only those who are gender diverse but those who are culturally diverse. There are many formulations of family and many understandings of who is a parent extending well and truly beyond the cultural confines of Anglo normative thinking.
79.  Different relationships are simply different. Children are born to single parents, increasingly so (and I am not ignorant of the volumes written addressing the disadvantages that can arise for parents and children within those structures though they can be addressed readily especially those which are financial). Children are born to same sex couples through artificial conception procedures. Children are born into a variety of families and conceived by a variety of means.
80.  The one thing that is common to every conception is the fertilisation of an egg by a sperm no matter how the two may have met.
81.  These are not matters, by and large, which need be dealt with by these Reasons as the parties have agreed. These issues do, however, speak to the rights-based approach which I am urged by the Australian Human Rights Commission to adopt. In this case I accept that such an approach has some real force and application.
82.  The Australian Human Rights Commission submits that section 60H of the Family Law Act, providing, as it does, for the recognition of a nonbiological parent as a parent, steps outside of that which is discussed in a body of case law regarding the “begetting” of children as a fundamental element of parentage. An erudite discussion of case law relating to same is contained within the Australian Human Rights Commission’s submissions.
83.  I am satisfied, as is submitted by the Australian Human Rights Commission, that the changes brought to the child support legislation by section 29 are such that this earlier body of case law can be distinguished.
84.  To the extent that the definitions relied upon in the earlier applicable legislation were far more limited they are no longer relevant to the circumstances of this family and this child.
85.  Ultimately, I am satisfied that to ignore the simple scientific reality of this child’s conception would be an injustice. It is the role of courts to ensure justice.
86.  To distinguish between a child, the conception of whom is clear and undisputed (even though there are many other disputes regarding the relationship between the parents), and another child whose conception is equally clear and undisputed purely on the basis that, in one case, the genetic material of the two parents was introduced by vaginal intercourse and, in another, the genetic material of the two parents was differently introduced is unjust and would make, in the words of George Chapman, “an ass of the law”.
87.  To treat a child born as the agreed product of the genetic material of two known and consenting individuals differently to another child, purely as the penis of one did not enter the vagina of the other, even though both are born in circumstances of equal certainty as to the donators of genetic material, the child’s“begetters” would be, I am satisfied, inherently unjust.
88.  The simple reality that this young lad has been conceived from one parent’s sperm  and the other’s egg, without vaginal intercourse as the mechanical means of conception, should be irrelevant. He is born of two known individuals who acknowledge that fact. The child has a right to know that and a right to be financially supported by both in accordance with the means of those individuals and in accordance with law.”

His Honour went on to say[43]:

91.  “There is an abundant body of research in the modern world relating to children who are removed from family, children who have been adopted and children born as a consequence of artificial conception procedures, particularly those born from procedures with anonymous donors. That research alerts the community, of which the Court is a part, to the great distress that can be caused for children by and as a consequence of being deprived of that right to have knowledge of these matters.
92.  There should be no distinction between this child and any other child whose donator of genetic material is clearly known and based upon a distinction drawn purely on the means by which fertilisation of a human egg occurred. The child has a right to know his parentage and, as is indicated by the submissions of the Australian Human Rights Commission and those of the mother, a right to receive financial support from his parents.”

All very good – but can a child have three parents?

The law in Australia recognises only two parents.  In some foreign jurisdictions, recognising the complexity of children conceived through donors, courts or legislature has recognised that a child can have three parents.  The typical scenario would be a gay sperm donor providing sperm to a lesbian couple enabling the conception of a child.

In Australia we have consistently found, particularly in light of section 60H that these men are not parents.  I want to explore two recent cases:

Packer & Irwin [2013] FCCA 658

A non-biological mother of two children sought various parenting orders, including extra time with the children.  The biological mother (for whom I acted) had conceived the children following sperm from a known donor.  The three parties had executed a sperm donor agreement.

The children had a distant relationship, at best with the non-biological mother.  By contrast the relationship with the sperm donor who, in the opinion of the family report writer was to all intents and purposes the father, even though no one called him that, was solid.  He was very much involved in the children’s lives.

Turner J stated, under “additional issues[44]:

            “Much was made of Mr Jeffrey lack of legal status as the father of the children.  I find that             as a person actively involved in the care, welfare and development of the children pursuant      that it is appropriate for Mr Jeffrey to part of the Court proceedings.  Further it was           suggested that Mr Jeffrey may be trying to displace Ms Packer as the parent.  I agree with       the comment of the report writer in cross-examination ‘that’s just silly’ and that ‘children          can have three parents!”

Reiby & Meadowbank [2013] FCCA 2040

In January 2010 Mr Reiby had been a friend of Ms Meadowbank, sent her a text message:

            “Hey does anyone want to be a surrogate for me or have a baby with me?”

The text message was not sent to anyone else.

Somehow out of this text message and subsequent discussions, Mr Reiby thought that he was going to be the father of a child and Ms Meadowbank and her partner thought they were going to be the parents of the child and Mr Reiby merely a sperm donor.

Not surprisingly this train wreck reached court.  The child was two.  This case is an illustration of two things:

1.     The latest illustration of differences between the parties as to their respective roles;
2.     The complete disregarding of the sperm donor agreement.

Mr Reiby in going to trial considered that it was appropriate for an equal time arrangement to be entered into such that the two year old would spend week about between his care and that of the respondents.  He altered his position at trial proposing 9/5 fortnight in their favour, with equal shared parental responsibility between the three adults.  The respondents proposed that they have between them equal shared parental responsibility and that he have some vague day time contact.

The respondents were successful.

The case is a classic example of why parties ought to have fertility counselling before entering into such an arrangement as well as being just the latest demonstration about the dangers of using a known donor and when things go wrong, they go badly wrong.

Small J noted that the donor was not a parent, by virtue of section 60H but was “clearly” a person concerned with the care, welfare and development of the child and noted the Full Court decision in Donnell & Dovey [2010] FamCAFC 15, which made it clear that not only might children’s best interests be served by them spending time or even living with people who are not parents under the Act but those relationships may be of more importance to a child than his/her relationship with his/her legally defined parents.  It was submitted on behalf of Mr Reiby that the amendments to section 60H[45]:

            “To exclude the donor of genetic material as a ‘parent’ were never intended to override the           principles discussed in the two cases referred to above or to exclude a known and involved     father (sic) from parenting a child.  Very clear legislative intent would be required to do     that.”

Her Honour in noting Groth & Banks noted that the child was born while the mother was the de facto partner of another person, that section 60H applies and[46]:

            “Therefore any argument that I should consider this case as affording an opportunity to    expand the category of ‘parent’ must fail.”

Her Honour placed no weight on the sperm donor agreement:

            “The concepts of ‘intention’ or of ‘intent’ are in my view, better suited to the jurisdictions of           general, civil and criminal law than to family law parenting matters.  In the words of the           Respondents’ counsel’s written submissions: ‘the submissions are not a contract dispute’.             The Family Law Act 1975… makes clear that any rights contained in Part VII of the Act            belong to the child and not to the parents or any other party (s.60B).  Thus it is not possible             for parents and any other person or persons to make contractually binding agreements     about a child’s care unless those agreements are contained in a Minute of Proposed    Consent Orders which is then made an order of the Court.  Further, s60CA makes clear that         in making any particular parenting order, the court must regard the best interests of the        child as its paramount consideration.  I can find no mention of the ‘intention’ or the child’s          parents (or other parties) as a consideration anywhere in Part VII of the Act other than      s.60H(1)(a)…  For these reasons I do not place any weight on any agreements the parties          might or might not have reached about X’s care before the institution of these proceedings.              She has statutory rights under the Act and there simply cannot be contracted away by her   parents and/or any third party.  …regardless of whether the parties agree to certain matters    before the institution of these proceedings, that alleged agreement, and/or the intention       behind it, is not a matter that should influence the court’s decision in this parenting case.       The parents are not in agreement now, and that is the starting point for the court’s             consideration.[47]

Her Honour ordered that the Respondents have sole parental responsibility for the child and the child live with the donor to have daytime contact on a weekly basis gradually increasing over time.  Once the child commenced school it would be once a weekend per month during school term from 10am Saturday to 5pm Sunday, each Wednesday from afterschool until after dinner, by telephone every other Saturday and two weeks a year in school holidays as well as other special occasions.

Removal of the sperm donor as a parent on the birth certificate

AA v Registrar of Births Deaths and Marriages and BB [2011] NSWDC100

A lesbian couple were in a relationship – AA and AC.  AC was the birth mother.  BB was a known sperm donor.  AB and AC separated.  BB was registered for many years as the child’s father.

The issue before the court was whether the non-biological mother, AA should be registered under Births, Deaths and Marriages Registration Act 1995 (NSW) as a parent of the child and therefore BB as the father should be removed from the Register.  AA and AC placed an advertisement in a gay newspaper seeking a donor, view to being “uncle” figure to child.  No financial obligation.  At the same time BB placed an advertisement in a lesbian newspaper “sperm donour(sic) professional male mid-forties would like to meet lesbian lady to view of producing a child. 

BB donated sperm.  The sperm was inserted into AC by syringe.  After 3 or 4 attempts, AC became pregnant.  BB visited the child the day after the child’s birth and was invited to visit whenever he chose.  He contributed close to $10,000 towards midwifery consultations.  After the child’s birth he paid $150 per week for her maintenance for some years.  The child’s birth was registered in August 2001.  AC was registered as the mother.  The section for father was left blank.  At that time there was no legislative provision in New South Wales permitting registration of more than one female as a child’s parent.  The mother stated in evidence:

            I left the spot for ‘father’ blank.  It was not possible to list a second female parent in NSW            at that time.  If it had been possible, I would have listed [AA] as [AB’s] other parent.”

Within months of the birth BB’s relationship with AA and AC had ceased to be amicable.  In 2002 BB applied to the Family Court for contact orders.  Contact orders were made in 2003.

In 2002 BB’s name was placed on the birth register as AB’s father.  Both AC and BB signed a statutory declaration giving BB’s name, address and occupation, date of birth in the section called father’s particulars.

The non-biological mother stated in evidence:

            “As [BB] was the sperm donor and AB was conceived through assisted conception, my      understanding at the time that [AC] and [BB] arranged to include [BB’s] name on the birth        certificate was that it was intended as a purely symbolic gesture without any legal effect.”

In 2006 there was a relationship breakdown between AA and AC, resulting in the child in a week about basis between the two women.  In 2007 there were further orders in the Family Court sharing parental responsibility between AA and AC and allowing for an increase of time between AB and BB.

In 2008 the law of New South Wales was changed to allow the recognition of the non-biological mother on the birth certificate.  The legislation was retrospective.

AA sought to have her name registered as the second parent.  The Registrar refused without BB’s consent or a court order.

BB not surprisingly refused the request:

            “In addition to me being [AB’s] biological donor, I take offence at this description as far as           I am concerned I am and always will be [her] father…”

Counsel for AA noted that BB was presumed to be a parent because he had executed an instrument acknowledging his paternity and he was entered on the Register of Births, Deaths and Marriages as the father.  However the presumption that AA was the other parent was irebuttable and must prevail over the rebuttable presumptions.  Once AA was presumed to be the parent on which she had rights on the Births, Deaths and Marriages Registration Act.  Judge Walmsley SC accepted the arguments of AA and distinguished a Canadian decision which concerned an application of a declaration of parentage for three parents based on the parens patriae jurisdiction which enabled the sperm donor father in obtaining the declaration the child had three parents, on the basis that the jurisdiction being exercised in the District Court was not the parens patriae  jurisdiction.

AA v Registrar of Births, Deaths and Marriages and BB was followed in similar facts in Dent & Reece [2012] FMCAfam 1303.

In Lu v Registrar of Births, Deaths and Marriages (2) [2013]NSWDC123 P Taylor SC DCJ followed AA v Registrar of Births, Deaths and Marriages and BB stating:

            “I do not think a finding of the father is a biological father of the child is relevantly a          finding that the father ‘is the child’s parent’ and adopted child, is at law, parents that    commonly would not include the biological father, for example.   … In my view, the creation           of an operative presumption on section 12 of the Status of Children Act[48]requires a judicial          determination that a person is the legal father, or the legal parent, not merely the biological        parent.”
His Honour therefore found that the non-biological mother or mother should have her name added to the child’s birth registration.

A & B v C [2014] QSC111

This was a similar case to the New South Wales case.  Ann Lyons J followed AA v Registrar of Births, Deaths and Marriages and BB  holding:

            “A Registrar of Births, Deaths and Marriages is, as has been discussed in the NSW           decisions, a register of statistical and evidential Information mainly for the purposes of          succession law.  It is not a register of genetic material.”

That the Supreme Court had parens patriae jurisdiction, but the sperm donor was self-represented.  He did not appear to raise the issue of whether or not the court should exercise its parens partiae jurisdiction.

Use of donor agreements

I was once of the view that donor agreements were a waste of time.  As Reiby & Meadowbank demonstrates, they may in large part be ignored by the court. 

I am of the view, however, that if you have clients who against your advice are insistent on having a known donor, then to avoid a train wreck such as Reiby & Meadowbank they ought to take three steps:
1.     There should be extensive, meaningful discussions between them about their respective roles.  There shouldn’t be 3 or more shades of grey.
2.     They should have comprehensive counselling with a fertility counsellor, typically a psychologist who is a member of the Australia New Zealand Infertility Counsellors Association  (ANZICA).  There are some fertility counsellors in private practice and others associated with IVF Clinics.
3.     There should be a sperm or other donor agreement in place.

As Reiby & Meadowbank makes plain, a sperm donor agreement is not legally binding.  However, it can contain strong moral arguments which may have an impact in reducing conflict between the parties, simply because it is in writing and each of the parties has signed up.

It is therefore essential that any sperm or other donor agreement is properly drafted and not merely one downloaded from the web.  Parties need to have put thought into the process.  Part of my thinking has come about from two surrogacy cases in which I have been involved.

Surrogacy Case A
I acted for the intended parents, a gay couple.  The biological father had been friends for 14 years with the surrogate.  It was a traditional surrogacy, which means that the surrogate was also the mother.  The surrogate was single. 

One embryo was implanted.  The embryo divided, resulting in the conception of identical twins.  The pregnancy was difficult and child birth worse.  Following the births, the surrogate (and mother) considered that she may want to have the children living with her (along the lines of Re Evelyn [1998] FamCA 55.  My clients contacted me late at night because it seemed that whatever they were discussing with their friend the surrogate didn’t seem to be working.  At their request I sent them a copy of the signed surrogacy arrangement.

The surrogate was particularly unhappy to see, at her hospital bed, a copy of the signed surrogacy arrangement, with the finger pointed “you signed there”.  The shock value had its impact, however, and with some delicate negotiations it was agreed that the children would be in the care of the intended parents and not the surrogate.

Subsequently a parentage order was made amicably.

Surrogacy Case B

The intended parents and surrogate entered into a surrogacy arrangement in Victoria.  Written surrogacy arrangements are not required in Victoria.  The parties attended counselling and obtained legal advice.  They obtained approval from the patient review panel.  Treatment commenced and a child was conceived and born.

Subsequently there was a falling out between the intended parents and the surrogate.

I became involved at the time of filing proceedings.  It was hard to see what the parties had agreed to when there was not a written surrogacy arrangement.

The court ordered that the parties attend counselling.  One of the issues addressed in counselling was that the surrogate and the intended parents had different expectations arising from the surrogacy arrangement.  It was clear that part of the reason they had different expectations was because that those expectations had not been reduced to writing in a surrogacy arrangement.  It was clear that if they had done so much of the trouble between the parties might have been avoided.

Swapping Eggs

The practice that has become more and more common in recent years occurs with lesbian couples.  One may offer her eggs to a partner.  This may be so that they can have a child together.

At least in Queensland, this does not constitute surrogacy.

The presumption of the clients that I have seen who have undergone this practice is that they know that they are both the parents as a matter of law of the child.  If they are using a known donor they may have considered that the donor is not a parent but have failed to consider whether the donor is a person who is concerned with the care, welfare and development of the child and who therefore has standing to make application before the court.

One of the features that I have seen is that the birth mother (irrespective of genetics) may consider herself to be the mother and the donor or partner is not the mother.  The non-birth mother will consider herself just as much mother of the child.

An example of this conflict (although not where there was any gifting of eggs) was in Lusito & Lusito [2011] FMCAfam55 this involved a primary school age boy called X.  It was a fight between the biological and non-biological mother.  I was the independent children’s lawyer.  The first feature of the case was that Purdon-Sully J wanted evidence to demonstrate that the father had been served or if he was not capable of being served some letter from the clinic about his anonymity.    This was after receiving evidence from both parties that the child was conceived from an anonymous sperm donor.

Evidence was obtained from the IVF clinic that there was an anonymous sperm donor and the letter was tendered.

During the course of the case the law changed in Queensland to allow the non-biological mother to be registered on the birth certificate as a parent.  Not surprisingly she wished to be registered as a parent.  The biological mother was opposed to the non-biological mother being registered, her evidence at trial was that their son, who was soon to reach high school might be discriminated against at school and in prospective employment if his birth certificate showed that he had two women as the mother and parent.  The biological mother was also concerned that the child had the ability at the age of 18 to be able to locate his father if he so wished and to have the option to have his father named on the birth certificate as his father.

The non-biological mother did not press the issue as she did not ultimately seek an order that she be named on the birth certificate as a parent but stated in cross-examination that she merely wanted to have an on-going relationship with her son.

Ownership of embryos

It is a topic for another day but there are currently a number of disputes or potential disputes between parties who have split up where there are embryos stored in IVF clinics.  It is incumbent upon all of us as family lawyers to identify when we have that first interview with the client or shortly thereafter to see if there are embryos stored in IVF clinics and what is to happen with those embryos.  They may well be property under the Family Law Act and failure to properly advise clients about the consequences of taking or failing to take action under section 79 of the Family Law Act of other action could result in a professional indemnity claim.

Care, Welfare and Development

The law only recognises two parents.  However as we have commonly seen sperm donors may well be someone concerned with the care , welfare and development of a child and therefore have standing to obtain orders under the Act.  Probably the best illustration of that was Halifax & Fabian.

Halifax & Fabian & Others [2009]FMCAfam 972

Ms Halifax and Ms Fabian were a lesbian couple.  They each decided to have children.  Ms Halifax’s child was conceived from a known donor, a family friend Mr Dalton.  The child, X, was aged 7.  Ms Fabian’s child, Y, was conceived from an anonymous donor accessed through an IVF clinic.  There was no genetic relationship between the two children, but they were treated as sisters.

After they separated Ms Fabian wanted to move interstate from Brisbane to Sydney with her child.  That intention was opposed by Ms Halifax and by Mr Dalton and his partner Mr Ballard.  The preliminary question determined by Judge Purdon-Sully was whether Mr Dalton and Mr Ballard had standing to seek any parenting orders with respect to X, Ms Fabian’s child.  There was after all no genetic link by Mr Dalton to that child.  Similarly there was no genetic link by Mr Ballard to X.

Ms Halifax argued that discretely or even cumulatively, occasional dinners in the city, attendance at X’s first birthday party, attendance at an ultrasound procedure, a subjective desire to care for a child and being a designated RSVP contact on an invitation, do not create parental rights and legal standing.  However in the circumstances of the case the evidence pointed to something more than this, something more than supportive friends helping each other out without intending to create any other parenting rights, resulting in the necessary degree or strength of the nexus or concern between each of Mr Dalton and Mr Ballard and the care, welfare and development of X, such that they had the necessary standing.

The evidence of Mr Dalton and Mr Ballard was:
·      They were involved in the parenting of both children.  They had established a home to accommodate the development of the relationship and had made employment and residential adjustments to that end.

·      Decisions were made prior to conception of both children including with respect to religion, education, circumcision, discipline and all four adults agreeing to remain living in South -East Queensland.

·      They accepted Ms Fabian’s invitation to attend her 12 week pregnancy scan.

·      They visited the hospital the day of X’s birth and daily thereafter and cared for Y until X was brought home.

·      They were introduced as “daddy” to the friends and family of both women.  It appeared to be conceded that X referred to her mother and Ms Halifax as “mummy” and “mamma” and to Mr Dalton as “daddy”, Mr Ballard by either his first name and possibly “daddy (and his first name).  The family report writer observed that the children used these names with the four adults during her interviews notwithstanding that those interviews occurred some months after separation.

·      The children developed a close attachment to each other and to them.  The family report writer observed that the children were strongly attached and affectionate with both mothers and affectionate and secure with both men.  Ms Fabian acknowledged to the family report writer that the men loved X, that X was comfortable with them and that they had a bond with her and she’d spend time her, her complaint being that they should not be permitted to assume a parental-decision making role.

·      They spent regular time with the children including on weekends and week days and they were also asked to babysit from time to time.  Whilst Ms Fabian’s refusal to agree to overnight time caused some angst and created problems, on their evidence, with Y’s arrangements, on one occasion Ms Fabian did agree to this to enable X to spend time with Mr Ballard’s mother who was visiting H.  

·      They exchanged gifts with the children on birthdays, special occasions, on Fathers Day and at Christmas, including after the women had separated.  Ms Fabian accepted that they celebrated Fathers Day with the men, albeit her evidence was that Ms Halifax usually initiated the purchase of gifts for the men and that on a shopping trip with the children at Christmas she helped the children purchase gifts for the men and that she purchased Easter Eggs the following year as a gift from the children for the men.
·      They socialised, attended activities, celebrated special occasions and had holidays together.

·      They attended with the children and Ms Fabian at the annual gay pride parade marching in the family section of the parade.

·      They established a separate bedroom for the children with a bed that converted to two single beds to accommodate any overnight stays and did so with the knowledge and without objection from either of the women.

·      X had a photo of the men in her bedroom.

·      They were listed by Ms Halifax as emergency contacts in two years at X’s daycare centre.

·      Ms Fabian consulted Mr Dalton about some medical issues to do with X given his medical background.

The matter was ultimately litigated in the Family Court as Halifax & Fabian [2010] FAMCA 1212 but proceedings with the men by that stage had settled.

Cronin J noted a paper by psychologist Kathryn Boland at the National Family Law Conference (2010)  Outside the nuclear family – children’s outcomes and experiences in same sex families”:

            “In many lesbian families there is a conscious avoidance of language that makes   distinctions around biology.  Unfortunately in research that looks specifically at the role of          the co-mother, the child’s attachment to her and the strengths and challenges of this role,   are still in its infancy.  …very little research specifically examines the experiences where            women in a lesbian couple each have a pregnancy or multiple pregnancies and yet this             seems to be an emerging variable of importance and certainly seems to be a typical pattern            of family formation.”

It might be noted in Halifax & Fabian that Mr Dalton was named on Y’s birth certificate but that no father was recorded on X’s birth certificate.  Ms Fabian did not seek to be named on the birth certificate of Y (which would have resulted in the removal of Mr Dalton) but an issue in the case was whether Ms Halifax should be recorded on the birth certificate of X.  Cronin J stated[49]:

            Ms Halifax wants to be on the birth certificate of X.  When Ms Halifax was questioned      about why it should be done, she simply said it was because it was she was the parent of X.          Ms Fabian refuses the option now open under State Law.  Ms Fabian was cross-examined             about her position.  She pointed at the fact that she could not be on Y’s birth certificate and     did not see what the point was all about.  Her view of the law is not entirely correct because          an application could be made at the Supreme Court for an alteration of the birth certificate             in respect of Y.  This however, is another example of Ms Fabian separating out what was            once a family unit.

            Ms Halifax’s submission was that her addition to the birth certificate of X was a ‘proper    recognition’ of the relationship between she and X.  All that is to do with practical       assistance for the determination of ‘legal rights’ involving X.  Counsel for Ms Halifax        described Ms Fabian’s position as one in which it was ‘unfair’ to Ms Halifax because the          same position could not apply in respect of Y.  In my view, two points need to be made.       First, Ms Fabian’s evidence was that she saw no need for the addition rather than it being           unfair.  I accept that.  Secondly, the issue must still be determined on what is in the best   interests of X.  No such demonstration was made on the evidence.

            Accordingly, I fail to see what benefit these children would have at this time in their lives    where there is a psychological separation occurring by Ms Fabian from Y and an attempt at        distancing X from Ms Halifax.  It is not therefore in the best interests of these children for   that birth certificate entry to be made.”

A further example of difficulties involving a lesbian couple each of whom has a child was Connors & Taylor [2012] FamCA 207.  In that case Watts J found that each of the women was a parent of each of the children.  Each of the children had the same known sperm donor, who was named on their birth certificates as the father.


The law currently recognises only two parents.  Advances in the UK (which no doubt over time will be replicated here) to allow mitrochrondial DNA to be inserted into the DNA of an embryo such that an embryo has 3 genetic parents is unlikely to change who is a parent as a matter of law but no doubt will make the life of the child and his or her identity even that more complex.  It will be interesting to see if courts do recognise three parents or continue to take the current approach which is that there are two parents only and that someone in a position of a known donor is not a parent but maybe someone concerned with the care, welfare and development of a child and despite any agreement between the parties and maybe removed from the birth certificate as a parent.

Stephen Page
6 July 2015

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[1] Stephen Page is a partner of Harrington Family Lawyers Brisbane.  He was admitted in 1987 and has been an accredited family law specialist since 1996.  He is an international representative on the Artificial Reproductive Technologies Committee of the American Bar Association, a fellow of the International Academy of Matrimonial Lawyers and the first international fellow of the American Academy of Assisted Reproductive Treatment Attorneys (AAARTA).  He is the author of  the Australian Surrogacy and Adoption Blog:
[2] At [34].
[3] I have for the sake of convenience used the Queensland Act. Similar legislation is in place in all States and both Territories.
[4] Defined in s.4
[5] At [70]
[6] See also and as to 6GT: Fisher –Oakley and Kittur [2014]FamCA 123
[7] They need to be living together at the date of the procedure: Keaton and Aldridge [2009] FMCAfam 92, upheld on appeal: Aldridge and Keaton [2009] FamCAFC 229
[8] LWV & Anor v LMH [2012] QChC 026-conception is the act of pregnancy, not fertilisation of the embryo.
[9] Keaton and Aldridge [2009] FMCAfam 92
[10] See Ryan and Fraser [2014] FamCA 763 and Keaton and Aldridge [2009] FamCAFC 229
[11] As required under licensing requirements, such as the National Health and Medical Research Council, Ethical Guidelines on the Use of ART in Clinical Practice and Research (2007)
[12] At [17]
[13] At [23]
[14] Of the US states, Missouri, New Mexico and South Dakota are not prescribed.
[15] At [33]
[16] People in WA and SA, although not subject to explicit extra-territorial laws, may still be committing offences because of the Criminal Law Consolidation Act 1935 (SA) and the Criminal Code (WA).  Laws just passed in SA require those undertaking surrogacy overseas to obtain the permission of the SA Attorney-General.
[17] Dudley & Anor & Chedi [2011] FamCA 502; Findlay and Anor & Punyawong [2011] FamCA 503; Hubert & Anor and Juntasa [2011] FamCA 504 and Johnson and Anor & Chompunut [2011]FamCA505. Curiously Mr Dudley although Watts J declined to find that he was a parent, had been held for the purposes of the legislation by Stevenson J to be a parent in the earlier case of Dennis and Anor & Pradchaphet [2011]FamCA123.
[18] At [49]
[19] Which are the various State and ACT surrogacy legislation.
[20] At [61]
[21] At [68]
[22] At [100]
[23] At [12]
[24] At [31]
[25] As also seen in Ellison and Karnchanit, for example.
[26] At [46, 50, 51, 52]
[27] At [15]
[28] At [33] – [36]
[29] At [21] – [22]
[30] At [25]
[31] At [27]
[32] At [29]
[33] At {43} – [44]
[34] At [12] – [16]
[35] At [24]
[36] At [30] – [32], [37] – [38]
[37] At [52-57]
[38] At [42]
[39] At [46]
[40] At [47]
[41] At [51], [52]
[42] At [63-88]
[43] At [91-92]
[44] At [96] – [99]
[45] At [145]
[46] At [150]
[47] At [51] – [57]
[48] Where there has been a finding by the relevant court
[49] At [172] – [174]