High Court to determine who can be a legal parent

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High Court to determine who can be a legal parent

On Friday 14 December 2018 we appeared in the High Court in a special leave application. We asked the Court to consider whether our client’s family law matter was significant enough to be heard by the highest court in Australia.

The case involves a sperm donor (our client), his 11-year-old daughter, the biological mother of the child, her same-sex partner, and their child (aged 10).

Our client and the child’s biological mother agreed to conceive and co-parent a child together. At the time of conception, the child’s mother was single. They conceived the child by artificial insemination. Our client has been actively involved in his daughter’s life since her birth and she calls him ‘Dad.’

In 2016 the Family Court of Australia found that our client was his daughter’s ‘legal parent.’

In 2017 the Full Court of the Family Court found that the Family Court was in error, and that our client was not his daughter’s legal parent. The Full Court’s decision was based upon interpretation of state and federal law and how they intersect, if at all.

The High Court granted us special leave to appeal. The High Court’s decision to hear our matter confirms that there is a serious legal and social issue that must be considered about donors, parentage and the state of our family law legislation.

We consider that a fundamental right of every child should be the right to have the law constructed in a way that makes clear who their parents are. If the law is ambiguous then the High Court must remove that ambiguity.

The law must also be constructed in a way that allows it to evolve as society evolves. This means that the law should be able to recognise the experience of children born into different family structures or by way of artificial insemination.

The law as it currently stands is unclear. There is uncertainty about whether certain classes of persons are precluded from being a legal parent, even if a child’s reality is that a person is their parent, and it was intended that they would be a parent at the child’s conception.

The High Court will be asked to make clear who can be a parent of a child under the current law. This decision will have ramifications across the country for children and sperm donors fulfilling a parental role in a child’s life. It will confirm whether or not the Family Court is constrained in determining who a parent is by the law of the state they are sitting in, or if they are at liberty to apply common sense and logic in making that determination.

The High Court will hear our case in 2019.

For more information about this case, see Steiner Legal in the Media. If you’d like to read the previous decisions in this case, you can find them here:

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2017/789.html?context=1;query=masson;mask_path=

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2018/115.html?context=1;query=masson%20and%20parsons;mask_path=

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