The Law Handbook 2024

280 Section 4: Relationships, families and young people and the child. The child is not legally recognised as a ‘child’ of the intending parents in their wills, and special provisions must be made to explicitly leave the parents’ estate to the child if the intending parents wish to do so. If a donor parent’s parentage is established, their partner will be able to adopt the child and also become a legal parent. Case studies: The status of sperm donors Groth and Banks [2013] FamCA 430 Groth and Banks [2013] FamCA 430 involved a single woman not in a relationship with the man who provided a sperm donation for her to undergo an artificial conception procedure at an IVF clinic. The sperm donor sought parenting orders that he spend time with the child, and a declaration that he was the child’s parent. The court declared him to be a parent of the child, ordered shared parental responsibility and substantial periods of overnight contact. The court found that under various provisions of the FL Act, reference was made to ‘both parents’, implying that it was impossible to have more than two legal parents. The birth mother was presumed to be a parent by virtue of section 60H of the FL Act. The mother’s argument – that the sperm donor was not a parent by virtue of section 60H(1)(d) of the FL Act, which provides conclusively that the child is not the child of the donor of genetic material – was rejected by the court. The court held that the displacement of parentage of the donor in section 60H(1)(d) does not apply because none of the section 60H(1) categories applied in this case. The determinative factor being that the mother was not married or in a de facto relationship. The court accepted that the sperm donor in this case provided the sperm donation with the express intention of parenting the child; and on the basis that section 60H did not preclude him from parentage, the court declared him to be a parent of the child. The court held that in these circumstances – that is, where a sperm donor is considered to be a parent under the FL Act (because the mother was single) – then the provision in the SoC Act that conclusively presumes the sperm donor not to be a parent does not apply because it is inconsistent with the FL Act. Section 109 of the Australian Constitution provides that where there is an inconsistency between a state law and a Commonwealth law, the latter prevails to the extent of the inconsistency. Masson v Parsons [2019] HCA 21 The case of Masson v Parsons [2019] HCA 21 involved Ms Parsons, a woman who, at the time of conception, was in a same-sex relationship that was not a de facto relationship. Mr Masson was the child’s biological father and was listed on the child’s birth certificate as the father. He played an active role in the child’s life and was called ‘Daddy’ by the child. At first instance, Mr Masson was considered to be a legal parent of the child; the trial judge made orders providing for the child to spend extensive time with Mr Masson. Then Ms Parsons sought to relocate to New Zealand with the child and her partner. As a consequence of the orders made by the trial judge, Ms Parsons was not permitted to relocate to New Zealand with the child. On appeal, the Full Court of the Family Court held that as the Family Court exercised federal jurisdiction, section 79 of the Judiciary Act 1903 (Cth) (‘ Judiciary Act ’) must be applied. Section 79 of the Judiciary Act provides that state law is binding on courts exercising federal jurisdiction, unless a Commonwealth Act ‘otherwise provides’. In this case, the relevant state Act was the Status of Children Act 1996 (NSW) (‘ SoC Act NSW ’). Section 14 of the SoC Act NSW contains an irrebuttable presumption that where a child is born as a consequence of a sperm donation and the sperm donor is not the mother’s husband, then the sperm donor is not a legal parent of the child. There is a similar provision in the Victorian SoC Act. The Full Court of the Family Court held that because section 60H of the FL Act addresses parentage of children born via artificial conception procedures and does not contain any requirement that sperm donors be recognised as parents, the FL Act is not inconsistent with the SoC Act NSW and leaves room for the SoC Act NSW to apply. Accordingly, the Full Court of the Family Court held that since the Family Court exercised federal jurisdiction by virtue of section 79 of the Judiciary Act, the SoC Act NSW represented the law. The result was that Mr Masson was found not to be a legal parent of the child, regardless of the parties’ intentions at the time of conception and despite Mr Masson’s involvement in the child’s life. On appeal to the High Court, the decision of the Full Court of the Family Court was overturned.