Who’s A Parent?
The recent High Court decision of Masson v Parsons  HCA21, handed down on 19 June 2019 decided that a sperm donor parent was a parent for the purposes of the Family Law Act 1975.
In this case, the donor had entered into an agreement with a friend to provide his sperm to enable his friend “to artificially inseminate herself and as a result conceive a child, which she did”. The donor was named on the child’s birth certificate as father and he maintained a relationship with the child. The primary issue was whether the donor had standing to stop the child’s mother and her partner from relocating, with the child, from Australia to New Zealand. It was ultimately found that the donor father was a parent for the purposes of the Family Law Act and parent was given the ordinary meaning.
The Court considered a number of other matters including the inter-relationship of state acts and federal acts and the meaning and application of sections of the Family Law Act and how they applied to children born of artificial conception. It was not disputed in this case that the mother and her partner were ‘parents’ within the meaning provided in the Family Law Act, but was still found that donor father was also a parent.
Rather than discuss this decision, it might be more important to look at the powers of the Family Court to make orders in respect of children, and particularly who may apply for orders about children. The Family Court is occasionally asked to make orders in favour of non-parents, and Section 65C of the Family Law Act specifically provides that a parenting order can be applied for by either or both of the child’s parents; the child; a grandparent of the child; or any other person concerned with the care, welfare and development of the child. Section 64C provides that the court can make parenting orders “in favour of a parent of the child or some other person.” The Court is required to consider whether the person applying for the order, if not a parent or a grandparent, is a “person concerned with the care, welfare and development of the child” before it considers making any orders in favour of that person. The Court is also still required to consider the best interests of the child as the paramount consideration. The court has been asked to make orders in favour of step-parents, great-grandparents, former partners of parents, parents of the child’s friends and the Department of Human Services (NSW).
The courts have found that it is necessary for any non-parent applying for a parenting order to establish that they are concerned with the care, welfare and development of the child and that they can demonstrate that concern, in respect of at least one of the considerations, before orders have been made. This is a subjective threshold question and each case will be determined on its individual facts.
Leon Berger, Berger Kordos Lawyers Partner