Determining whether someone is a “parent” has been an area of controversy and difference of opinion within society and within the Court. Such debate has only grown with scientific developments in artificial conception.
No definition under the Family Law Act
Interestingly, there is no definition of what a “parent” is in the Family Law Act 1975 (Cth) (‘the Act’). The only definition that may be relevant is that under s 4 of the Act, which provides that a parent includes an adoptive parent of a child.
There are some presumptions though, which can be useful in providing some guidance on whether someone is a parent or not.
Presumptions of parentage
Under s 69R of the Family Law Act, if a person’s name is entered in the Register of Birth (i.e. appears on a child’s birth certificate), then those people are presumed to be the parents of the child.
If there is an execution of a document by a person acknowledging that they are themselves the parent of the child, this also creates a presumption that they are a parent of that child.[1]
A finding of the Court that a person is a parent also creates a presumption that that person is a parent.[2]
However, it is important to note that these presumptions are rebuttable, by providing evidence that shows that on the balance of probabilities the presumption is incorrect.
De facto partner of the biological mother
The key provision in the Act which deals with artificial conception procedures and parenting is s 60H.
Under this section, the birth mother and their married or de facto partner are regarded as the parents of the child for the purposes of the Act. If the birth mother is in an unmarried same-sex relationship, they must meet the definition of a de facto relationship under s 4AA of the Act. Some relevant factors to demonstrate this include the length of your relationship, any common residence or financial interdependence, a mutual commitment to a shared life and whether you have a relationship living together as a couple on a genuine domestic basis.
Where the birth mother does have a de facto relationship, the partner of the birth mother must consent to the artificial conception procedure, and this is presumed. However, this presumption can be rebutted.[3]
What has the Court said about donors as parents?
As there is no definition in the Act, it has been up to the Court to decide what the term “parent” means. The leading case which has determined Australia’s position on what is a parent is the case of Masson v Parsons [2019] HCA 21.
In this case, Masson, a homosexual male, was a sperm donor for Parsons, a homosexual female. Parsons gave birth to a child as a result, who spent time with Parsons and her partner, as well as with Masson and his partner. Masson spent significant time with the child, and paid child support. As time passed, Parsons and her partner wanted to relocate with the child away from Masson.
Parsons alleged that she was in a de facto relationship with her partner when the child was born, so her partner should be considered the child’s other parent. This would allow Parsons and her partner to relocate with the child without consulting Masson, as they would be considered the parents of the child. However, it was found this relationship did not meet the requirement of a de facto relationship.
The next issue then was whether Masson was a parent of the child. The High Court found that the ordinary meaning of the term “parent” applies.[4] They said that this is a question to be determined according to the ordinary, contemporary Australian understanding of a “parent”, and the relevant circumstances of the case. The Court emphasised the intention of the sperm donor as being a relevant circumstance, being that he was going to father a child whom he would help parent and for whom he would provide financial support and care.
As such, Masson was found to be a parent of the child.
Case law following this decision have affirmed the Court’s approach to determining who a “parent is”, and noted that the appellation of parenthood is not necessarily reserved for conferral on only two persons,[5] opening the door for more than two people may be considered the “parents” of the child.
What does this mean for the future?
In situations where a child is born through artificial conception, the sperm donor may qualify as a parent if they are a parent within the ordinary meaning of the word.
Outside of this, there is little to no guidance for determining when a donor will be regarded a parent. However, spending significant time with the child, providing financial assistance, and the child recognising a relationship with the donor as a father may indicate a donor is a parent for the purposes of the Act.
Who can seek Parenting Orders?
Whether or not you are regarded as a “parent” according to the Court, you may still be able to file an application seeking Parenting Orders.
Section 65C of the Act lists the categories of persons who can bring such applications, which includes any person “concerned with the care, welfare or development of the child”.[6] To fit into this category, you must have more than a mere concern or interest in the child.[7]
Therefore, where the birth mother is in a same-sex relationship, but the relationship does not meet the definition of a de facto relationship, the birth mother’s partner may still seek Parenting Orders to allow them to spend time with the child.[8] This also applies to donors.
Parenting arrangements are hard enough, even without the challenges that appear in new types of families. If you require advice about navigating disputes surrounding complex family structures, please book a confidential consultation with one of our experienced family lawyers today.
References
[1] Family Law Act 1975 (Cth), s 69T (‘Family Law Act’).
[2] Ibid s 69S.
[3] Ibid s 60H(5).
[4] Masson v Parsons [2019] HCA 21, [29].
[5] Mizushima v Crocetti [2024] FedCFamC1F 113, [14] (Austin J).
[6] Family Law Act, s 60C(c).
[7] M v R (1998) 24 Fam LR 656, 667.
[8] Aldridge & Keaton [2009] FamCAFC 229.
