He Still May Be A Parent – IVF, Fatherhood and the Family Court decision of Groth & Banks

05 Jan He Still May Be A Parent – IVF, Fatherhood and the Family Court decision of Groth & Banks

In the 2013 case of Groth and Banks [2013] FamCA 430 (11 June 2013) the Applicant male and Respondent mother knew each other for 10 years before having a relationship between August 2001 and February 2002.  In 2007 the Applicant was diagnosed with testicular cancer and froze some of his sperm. The Respondent mother then approached the Applicant and suggested that they have a child though in vitro fertilisation.  The Applicant agreed and the child was born in October 2010.

After the child was born, the Applicant spent some time with the child but neither party informed their respective families that he was the father.  When their arrangement became public, communication between the parties deteriorated.  After the mother learned the Applicant had a new relationship, she admittedly ‘stonewalled’ and limited the Applicant’s time with the child.  The Applicant then attempted but failed to get the Respondent to sign a parenting plan to regularise his time with the child.

In 2012, the Applicant filed an Initiating Application seeking orders for equal parental responsibility, the child live with the mother and spend time with him.  The mother responded that she be awarded sole parental responsibility but the Applicant could participate in the process.  The mother also sought that the child spend time with the Applicant during the day only in the immediate future, his time be supervised and that the Applicant attend a parental skills program.

The main issue related to whether the Applicant, as a sperm donor, was considered a ‘parent’ for purposes of the Family Law Act 1975 (Cth). The Applicant argued that for purposes of the Act, a ‘parent’ refers to a child’s biological parent unless there is a provision that expresses otherwise [5].  The Respondent argued that it was not sufficient to refer to a biological link and that the word ‘parent’ contemplated more than one who is a donor of genetic material [3].

Counsel for the mother argued that the Applicant was not a ‘parent’ because he did not satisfy the provisions under Section 60H(1)(d) of the Act.  That section addresses children born as a result of artificial conception and provides that“if a person other than the woman and the other intended parent provided genetic material – the child is not the child of” the person who provided the genetic material.

His Honour, referred to sections 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) of the Act and found that it envisioned two parents when dealing with parental responsibility, regardless of how the child was born.  Moreover Judge Cronin found the Applicant fit the presumption of who is a parent because “he is the biological progenitor and one of two people who set about a course of conduct with the intention of fathering a child” [16].

More importantly, Cronin J held that Section 60H, “should be interested as expanding rather than restricting the categories of people who could be the child’s parents” [20] referring to [2003] FamCA 822; (2003) FLC 93-173 per Brown J and B v J (1996) FLC 92-716 per Forgarty J.  Moreover, His Honour determined through the evidence that the Applicant intended to be the parent of the child when he provided his sperm and wished to remain involved in the child’s life.

If the Respondent mother had been in a de facto relationship or married at the time of conception, for purposes of Section 60H of the Act, Judge Cronin postulated that her partner would have been presumed to be a parent of the child.  Because the mother did not have a husband or a de facto partner at the time of birth, section 60H did not exclude the Applicant from being considered a father.  His Honour noted at [22] and [14] of the opinion, respectively, that:

• “Only in the event that a child is a child of a man because of section 60H(3) would the biological father of the child to whom that provision applied cease to be the father of the child and a parent for the purposes of the Act.  There is no person here that would displace the applicant as a parent under s 60H(3)”; and
• “The whole Commonwealth statutory concept as outlined in the Part VII of the Act is one in which biology is the determining factor unless specifically excluded by law”.

A presumption of parentage could not be replaced and the court declared the Applicant to be a ‘parent’ for purposes of the Family Law Act 1975 (Cth).

During the child’s young upbringing the Applicant had spent time with the child although during the litigation that time became supervised.  Even though the mother wanted to limit the Applicant’s time to daytimes only, the single expert was concerned that the child could be denied the opportunity to have a relationship with his father, and his father’s family, if his time was limited by the Respondent’s orders.

Ultimately, His Honour ordered that the parents have equal shared parental responsibility even though the parties had conflict in the past and trouble communicating with each other.  His Honour also ordered that the child spend more time with the Applicant which was to increase in stages over time.  The Applicant was also granted to have overnights with the child once the child was older than 3½ years.

If you are thinking about having a child through IVF it is important to consider your relationship status and seek legal advice before beginning treatment.