The Law Handbook 2024

Chapter 4.3: Same-sex and de facto couples and families 281 The High Court held that the relevant provisions of the SoC Act NSW could not be applied because the FL Act has ‘otherwise provided’. This is because the FL Act is ‘complete upon its face’, leaving no room for the SoC Act NSW to operate. The effect of section 60H of the FL Act is to expand rather than to restrict the range of persons who may qualify as a parent of a child born via an artificial conception procedure. Where section 60H does not expand the meaning of ‘parent’, the natural and ordinary meaning applies, as it does throughout the rest of the FL Act where the meaning of the term is not specifically departed from. Even though section 60H does not specifically mandate that sperm donors be recognised as parents, it does not exclude them from being recognised as such where they fall within the ordinary meaning of ‘parent’. The High Court held that the ordinary meaning of the term ‘parent’ is: … a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of ‘parent’ and the relevant circum- stances of the case at hand. In this case, Mr Masson was found to be a parent within the ordinary meaning of the term. Mr Masson provided his semen, and did so on the understanding that he would be the child’s parent. He was registered as the child’s parent on the birth certificate, had provided financial support, had been involved in the child’s care since birth and is regarded by the child and acquaintances as being the child’s father. It remains to be seen how this case will be applied in subsequent matters, including where the person who provided the sperm is not listed on the birth certificate. McAuley v Salberg [2020] FCCA 1538 The case of McAuley v Salberg [2020] FCCA 1538 involved Ms McAuley (the applicant) who, at the time of artificial conception, was in a committed same-sex relationship with Ms Salberg (the first respondent). Mr Mason was the sperm donor and biological father and was registered as a parent on the child’s birth certificate along with the applicant. The applicant sought, among other things, a declaration that Mr Mason is a parent of the child. This application was fully supported by Mr Mason. The court examined section 69R of the FL Act, which establishes the presumption that a person registered as a parent of a child on the child’s birth certificate is considered to be a parent of the child. Yet under section 60H of the FL Act, if the court finds that the applicant and first respondent were in a de facto relationship at the relevant time, and the child was conceived through artificial conception, then the applicant and first respondent are the parents of the child for the purposes of the FL Act, despite what is noted on the child’s birth certificate. There was clearly artificial conception in this matter, and the court was satisfied that the applicant and first respondent were in a de facto relationship at the relevant time. Therefore, the court found that the applicant and first respondent are the child’s parents. The applicant was also granted sole parental responsibility in this case. No parenting orders for time with the child were sought by Mr Mason. Re Tinashe [2021] FamCA 41 The case of Re Tinashe [2021] FamCA 41 dealt with the question of whether ‘mere sperm donors’ can be considered to be parents. In this matter, the child (X) was conceived using IVF with an anonymous sperm donor. When considering parenting orders following the death of X’s mother, Justice Gill considered whether X had any parents apart from their mother. The ordinary meaning of the term ‘parent’, as discussed in Masson v Parsons , was considered, but it was found that this did not cover an anonymous sperm donor with no involvement in a child’s life. Therefore, in this case, the sperm donor was not classified as a parent. Conclusions from the case law It remains clear that if a birth mother was in a married or de facto relationship at the time of conception, her married or de facto partner (regardless of gender) has a presumption of parentage under section 60H(1)(c) of the FL Act, activating the displacement of parentage on the part of the sperm donor in section 60H(1)(d). For lesbian couples using a known donor – provided they were in a domestic relationship at the time of conception and the non-birth mother consented to the conception procedure – they are both presumed to be a parent of the child and a declaration of parentage is not available to the sperm donor. There will be no inconsistency between Commonwealth and state laws and, accordingly, the SoC Act provides that a man who produced the