Bateman and Kavan
[2014] FCCA 2521
•1 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BATEMAN & KAVAN | [2014] FCCA 2521 |
| Catchwords: CHILD SUPPORT – Declaration sought under section 106A that the Respondent is a “liable parent” for the purpose of administrative assessment pursuant to the Child Support (Assessment) Act 1989 – Respondent seeking dismissal of the application on the basis that he was not in a de facto relationship with the Applicant at the time of an IUI process and is not a deemed parent of the child pursuant to section 60H of the Family Law Act1975 – Intervention by Child Support Registrar and Human Rights Commission – consideration of the extent that the provisions of the Family Law Act1975 are relevant to a determination of parentage for the purpose of the Child Support (Assessment) Act 1989 – relevance of the mechanical method of fertilisation and conception in determination of who is or is not a “parent” when the donators of genetic material are known and consent to donation and insemination – relevance of the child’s rights pursuant to the International Convention on the Rights of the Child – execution of an Application for Registration of Birth and inclusion of a person’s details as an admission of paternity – meaning of “begetting” in the context of scientific and medical possibility. |
| Legislation: Child Support (Assessment) Act 1989 (Cth), ss.5, 29, 100, 106A. |
| B & J (1996) FLC 92-716 W & G (1996) 20 Fam LR 49 Hall v Jones (1942) 42 SR (NSW) 203 Transport Accident Commission v Treloar [1992] 1 VR 447 Betella v O’Leary [2001] WASCA 266 Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104 Minister of Immigration & Ethnic Affairs & Teoh (1995) 183 CLR 273 Jumbunna Coal Mine No Liability v Victorian Coal Miners’ Association (1908) 6 CLR 309 Kemble & Ebner [2008] FamCA 579 Buck v Comcare (1996) 137 ALR 335 Shergold v Tanner (2002) 209 CLR 126 |
| Applicant: | MS BATEMAN |
| Respondent: | MR KAVAN |
| First Intervenor | CHILD SUPPORT REGISTRAR |
Second Intervenor: | AUSTRALIAN HUMAN RIGHTS COMMISSION |
| File Number: | PAC 4639 of 2013 |
| Judgment of: | Judge Harman |
| Hearing date: | 1 October 2014 |
| Date of Last Submission: | 1 October 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 1 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Winfield and Mr Babe |
| Solicitors for the Applicant: | Burston Cole & Associates |
| Counsel for the Respondent: | Mr Morley |
| Solicitors for the Respondent: | Aaron Legal Solicitors |
| Solicitors for the First Intervenor: | Ms Taah of Australian Government Solicitor |
| Solicitors for the Second Intervenor: | Mr Edgerton of Australian Human Rights Commission |
ORDERS
By consent make Orders in accordance with the Minute of Order executed by the parties marked Exhibit ‘A’ attached hereto.
Each party shall pay their own costs of and incidental to today’s proceedings.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
EXHIBIT A
MINUTE OF ORDER
Pursuant to section 106A Child Support Assessment Act 1989,
Mr Kavan should be assessed in respect of the costs of the child [X] born [omitted] 2011 because Mr Kavan is a parent of the child.
The Child Support Registrar accept the Applicant’s application for assessment filed 15 May 2013 in respect of the child.
NOTATION: On receipt of assessment the parties intend to enter into a Child Support Agreement and to do all such acts and things as are necessary to register such agreement with the Child Support Registrar.
Such further or other orders as this Honourable Court deems fit.
IT IS NOTED that publication of this judgment under the pseudonym Bateman & Kavan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4639 of 2013
| MS BATEMAN |
Applicant
And
| MR KAVAN |
Respondent
And
| CHILD SUPPORT REGISTRAR |
First Intervenor
| AUSTRALIAN HUMAN RIGHTS COMMISSION |
Second Intervenor
REASONS FOR JUDGMENT
These are proceedings commenced by Initiating Application filed 29 October 2013.
Parties
The Applicant in the proceedings is Ms Bateman. Ms Bateman is the mother of a child, [X] born [omitted] 2011.
The Respondent is Mr Kavan. Mr Kavan was described upon the Initiating Application as the “Respondent Father”. He should, perhaps, have been more correctly described at that point, as “the putative father”.
Relief sought
The proceedings relate to relief under section 106A of the Child Support (Assessment) Act 1989 (Cth). The application seeks relief as follows:
A declaration that Mr Kavan is a “liable parent” in relation to the child [X] born [omitted] 2011 for the purpose of administrative assessment pursuant to the Child Support Assessment Act (1989).
A Response to the application was filed by Mr Kavan on 31 January 2014.
By that Response Mr Kavan sought orders in the following terms:
1)A determination be made that the Respondent was not in a de facto relationship with the Applicant before, at the time of or after the conception of the child, [X].
2)A determination be made that the Respondent not be declared a parent of the child [X].
3)Dismiss the application of the Applicant and legal costs of the Respondent’s to be met by the Applicant.
Requests and applications to intervene
There are two Intervenors.
The Child Support Registrar intervened in the proceedings having filed a notice of intention to do so on or about 9 April 2014.
On 22 April 2014 an order was made pursuant to section 92 of the Family Law Act 1975, extending an invitation to the Australian Human Rights Commission to intervene in the proceedings. The Commission subsequently sought to intervene and orders were made in chambers with the consent of all parties to join the Commission, those orders being made 21 August 2014.
Settlement
The proceedings have now settled. A Minute of Orders is tendered which shall, for the purpose of these proceedings, be marked as Exhibit A.
The Minute of Orders provides for declaratory relief, as initially sought by Ms Bateman, together with a further order and a notation. Those orders will in due course be made.
Notwithstanding that the parties have reached a resolution of all issues, including as to costs (all parties agree that an order will be made that each party shall pay their costs of and incidental to the proceedings), these brief Reasons are given as:
a)It is submitted and, I accept correctly so, that reasons are required when granting declaratory relief pursuant to section 106A of the Child Support (Assessment) Act; and
b)The issues that are raised in and by the proceedings are a matter of some moment and importance to the parties and perhaps more broadly.
The latter comment is made in the full and abundant acceptance that laws are passed by the Parliament of Australia and, within our common law system, created through precedent and dicta of superior and appeal courts, of which this Court is not one. This is a first instance trial Court and, thus, any determination of these proceedings and any orders made in these proceedings are binding upon the parties to these proceedings only.
The Child Support Registrar is entitled to treat this decision as falling short of creating a precedent of general application to such cases as might arise in the future involving similar circumstances. That is a position validly open to the Registrar. These orders settle this case and not the law.
The Intervenors
From the outset I wish to highlight two matters of some significance.
Firstly, the Court is incredibly indebted to each of the Intervenors for the cogent submissions that they have placed before the Court and the assistance that they have provided, not only to the Court through those submissions but, no doubt, in assisting the parties in achieving a resolution of the legal issue before the Court. That has spared these parties from three days of trial.
Secondly, I make clear that to the extent that the orders which will be made by me (and made by consent) are contrary to the initial determination of the Child Support Registrar, I am not critical of the Registrar. It is not the role of the Child Support Agency, an administrative body, to determine the current law.
The determination of the law is the role of parliament (through the passage of clear and unambiguous legislation) and, as indicated, within our common law system, the role of superior courts through the creation of binding precedent.
The Child Support Registrar applied the “settled law” as they understood it and thus the Registrar has acted entirely appropriately. This extends to and includes through their intervention in these proceedings, through seeking to participate in, having input into and influence upon the determination thereof and so as to be aware of the orders made and the basis for them.
I am benefited by written submissions by each of the Australian Human Rights Commission, the Applicant mother and the Child Support Registrar.
I have not received written submissions in the case of the Respondent. That is no criticism. Clearly, an accord had been reached prior to trial and the matter was resolved, whether in principle or as to specific details and it would have been an onerous burden both upon counsel for the Respondent and the Respondent himself, to produce written submissions in support of an accord which is presented to the Court.
I have had the benefit of brief oral submissions from the Respondent’s counsel. These have been not only of great assistance but persuasive in ensuring that a consideration of the matter today, brief as it will be, is confined solely to the issues as raised by the parties and being a plea for declaratory relief under the provisions of the Child Support (Assessment) Act.
There is no need for any consideration of broader principles or orders, such as orders that might otherwise be made pursuant to the relevant provisions of the Family Law Act and especially declaratory relief pursuant to section 69VA.
The Family Law Act
There is some overlap and interplay between the Family Law Act and the Child Support (Assessment) Act. In that regard and for that reason I accept the submissions put by the Australian Human Rights Commission that there should be consistency in law and its application between the two jurisdictions.
Section 100 of the Child Support (Assessment) Act provides:
(1) The Family Law Act 1975 (other than Part X of that Act), the standard Rules of Court and the related Federal Circuit Court Rules apply, subject to this Act and with such modifications as are prescribed by the applicable Rules of Court, to proceedings under this Act (other than proceedings under paragraph 79(a)) as if:
(a) the proceedings were proceedings under Part VII of that Act; and
(b) the proceedings were proceedings instituted under Part VII of that Act; and
(c) a court having or exercising jurisdiction in the proceedings were a court having or exercising jurisdiction under Part VII of that Act; and
(d) a decree made in the proceedings were a decree made under Part VII of that Act; and
(e) matters arising in the proceedings were matters arising under Part VII of that Act; and
(f) any other necessary changes were made.
On the above basis the primacy of the child’s best interests as the paramount consideration, section 60CA would be incorporated into this determination. Indeed, as the assessment and payment of child support is in furtherance of the child’s best interests, the paramouncy principle is entirely consistent with the operation of the Child Support (Assessment) Act.
Certain portions of the Child Support (Assessment) Act rely directly upon provisions of the Family Law Act and thus one is required to incorporate and interpret those Family Law Act provisions for the purpose of making a determination under the child support legislation.
Submissions
I propose to incorporate, in their totality, the submissions made on behalf of the Human Rights Commission, the Applicant and the Child Support Registrar, and in that order.
Human Rights Commission Submissions
1. The Commission intervenes in this proceeding to make submissions about the interpretation of ‘parent’ in the Child Support (Assessment) Act 1989 (Cth) (CSA Act).
2. The Commission’s submits that, following amendments to s 29 of the CSA Act introduced by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 (Cth) (Reform Act), there is an ambiguity in the CSA Act about how the Child Support Registrar (Registrar) is to determine whether a person is a parent of a child born because of the carrying out of an artificial conception procedure.
3. In particular, since 1 July 2009,[1] whether or not a person is a parent under s 60H of the Family Law Act 1975 (Cth) (dealing with children born as a result of artificial conception procedures) is one of a number of factors that the Registrar must evaluate in determining whether he or she is satisfied that a person is a parent of a child.
[1]The Reform Act amended s.29 of the CSA Act by inserting s.29(2)(i) (see item 22F in Sch 6, Part 2). The relevant amendments commenced on 1 July 2009: CSA Act s.2 and Sch 6, Part 2.
4. The amendments introduced by the Reform Act mean that older cases such as B v J (1996) FLC 92-716 and W v G (1996) 20 Fam LR 49 which looked only to the definition of ‘parent’ in s 5 of the CSA Act can be distinguished. On one view, the new structure of s 29 and the older cases about s 5 give rise to an ambiguity about how to determine whether a person is a ‘parent’ for the purposes of the CSA Act.
5. The ambiguity in the CSA Act can be resolved by adopting an interpretation of ‘parent’ in the CSA Act that is consistent with Australian’s international law obligations under the Convention on the Rights of the Child (CRC).[2]
[2]Done at New York on 20 November 1989, [1991] ATS 4.
6. The Commission submits that such an interpretation would involve the Registrar taking the following steps when determining whether the person is a parent of a child born as a result of artificial conception procedures. First, to the extent that s 60H of the Family Law Act applied to either deem a person to be a parent or not to be a parent, the Registrar would make a determination consistent with the requirements of that section. This would be consistent with an object of the definition of ‘parent’ in s 5 that the answers given by an application of s 60H are to be binding. Secondly, to the extent that s 60H of the Family Law Act does not apply (ie, to the extent that s 60H says nothing about whether a particular person is a parent) the Registrar would consider whether any of the other criteria in s 29(2) of the CSA Act apply.
7. This interpretation would allow consistency in the definition of ‘parent’ between the CSA Act and the Family Law Act. As a result, it is more likely to promote a child’s right under article 27(4) of the CRC to recover maintenance from his or her parents.
Basis for intervention and outline of submissions
8. The Australian Human Rights Commission was granted leave to intervene in this proceeding pursuant to s 92(1) of the Family Law Act 1975 (Cth) (Family Law Act) and s 11(1)(o) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).
9. Pursuant to s 11(1)(o) of the AHRC Act, the Commission has the function of intervening in proceedings that involve human rights issues, where the Commission considers it appropriate to do so and with the leave of the court hearing the proceedings, subject to any conditions imposed by the court.
10. The phrase ‘human rights’ is defined by s 3 of the AHRC Act to mean the rights and freedoms recognised in the International Covenant on Civil and Political Rights, declared by the three Declarations appearing at schedules 3 to 5 of the AHRC Act, or recognised or declared by any relevant international instrument.
11. A ‘relevant international instrument’ is one in respect of which a declaration under s 47 of the AHRC Act is in force. On 22 October 1992, the Attorney General made a declaration under s 47 that the CRC is an international instrument relating to human rights and freedoms for the purposes of the AHRC Act.[3]
[3]Human Rights and Equal Opportunity Commission Act 1986 - Declaration of the United Nations Convention on the Rights of the Child, 22 October 1992.
12. The Commission considers that this proceeding engages a number of rights under the CRC which are dealt with in more detail below. These include:
12.1 in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration (article 3);
12.2 States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child (article 27(4)).
13. These submissions deal with the decision making by the Registrar under s 29 of the CSA Act, and how articles 3 and 27(4) of the CRC are relevant to those decisions.
14. The submissions that the Commission seeks to make can be summarised as follows:
14.1 It appears that the Registrar has relied on a narrow interpretation of ‘parent’ for the purposes of the CSA Act in cases where children are born as a result of an artificial conception procedure. This interpretation is consistent with some older cases such as B v J (1996) FLC 92-716 and W v G (1996) 20 Fam LR 49.
14.2 The definition of ‘parent’ relied on by the Registrar is narrower than the definition of ‘parent’ for the purposes of the Family Law Act.
14.3 There is ambiguity in how the CSA Act deals with the determination of who should be a parent. This ambiguity arises as a result of:
14.3.1 previous cases interpreting s 5 of the CSA Act; and
14.3.2 amendments made to s 29 of the CSA Act in 2009.
14.4 The ambiguity could be resolved in favour of an interpretation of ‘parent’ that would be consistent with the Family Law Act. Such an interpretation would promote the human rights of children born as a result of artificial conception procedures because it would be more likely to promote a child’s right under article 27(4) of the CRC to recover maintenance from his or her parents.
Who is a ‘parent’ for the purposes of the Family Law Act?
15. The essential question in this case is whether the respondent is a parent for the purposes of the CSA Act. On 3 September 2013, the Department of Human Services wrote to Ms Bateman confirming the decision not to accept her application for child support from Mr Kavan. The Department said that the reason for the decision was ‘that we consider Mr Kavan is not a “parent” for child support purposes’.[4] The application filed by Ms Bateman seeks a declaration that Mr Kavan is a ‘liable parent’ in relation to the child [X], for the purposes of administrative assessment pursuant to the CSA Act.[5]
[4]Letter from Department of Human Services to Ms Bateman dated 3 September 2013, annexure Q to the affidavit of Ms Bateman sworn 11 March 2014.
[5]A ‘liable parent’ is relevantly defined by the CSA Act as, ‘in the case of an administrative assessment – a parent by whom child support is payable for the child under the administrative assessment’.
16. The definition of ‘parent’ in the CSA Act, particularly as it relates to children born as a result of artificial conception procedures, relies on the operation of the Family Law Act. As a result, in order to understand the definition of ‘parent’ for the purposes of the CSA Act, it is first necessary to examine who can be a parent for the purposes of the Family Law Act.
17. The Family Law Act does not contain an exhaustive definition of ‘parent’. Section 4 provides that:
parent, when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child.
18. Because there is no exhaustive statutory definition of ‘parent’, courts interpreting the Family Law Act have looked to the ordinary meaning of the term. For the purposes of the Family Law Act, the primary meaning of the term ‘parent’ is the biological mother or father of a child.[6] In Tobin & Tobin the Full Court of the Family Court held that the natural meaning of the word ‘parent’ is a father or a mother and ‘a person who has begotten or borne a child’.[7] These submissions will return to the issue of what it means to ‘beget’ a child.
[6]B v J (1996) 21 Fam LR 186 at 189; Tobin & Tobin (1999) 24 Fam LR 635 at [40]-[42]; Re Mark (2003) 31 Fam LR 162 at 169.
[7]Tobin & Tobin (1999) 24 Fam LR 635 at [42].
19. In determining the question of parentage, the Family Law Act also contains a number of presumptions (parentage presumptions) (most of which are rebuttable), and deeming provisions (which are conclusive, to the extent that they apply).
20. There are parentage presumptions in ss 69P to 69U of the Family Law Act. These include presumptions arising from marriage, cohabitation, certain birth certificates, court findings, and executed instruments acknowledging parentage.
21. Relevantly for this proceeding, s 69R contains a parentage presumption that provides:
If a person’s name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.
22. Section 102 provides that the Court may receive, as evidence of the facts stated in it, an original or a certified copy of a certificate, entry or record of a birth alleged to have taken place, whether in Australia or elsewhere. That is, if a birth certificate is tendered in evidence, it gives rise to a presumption that the people named as the parents on the birth certificate are the parents of the child.
23. In addition to the parentage presumptions, the Family Law Act deems certain parental relationships to exist for the purposes of the Act. Relevantly, s 60H contains deeming provisions that apply to artificial conception procedures.
24. However, s 60H is not an exhaustive statement of whether a person is a parent of a child born as a result of an artificial conception procedure.[8] In particular, as will be described in more detail below, s 60H does not deal at all with the status of the man who provided his sperm where a child is born to a single woman as a result of an artificial conception procedure.
[8]See Groth v Banks (2013) 49 Fam LR 510 at [20]; Ellison & Karnchanit [2012] FamCA 602 at [57]-[64]; Baker v Landon (2010) 43 Fam LR 675 at [34]; Re Mark: an application relating to parental responsibilities (2003) Fam LR 162 at [40]; Stone v Bowman [2000] FamCA 1280 (unreported, 28 February 2000); B v J (1996) 21 Fam LR 186 at 196-197. For statements to the opposite effect, see Gough & Gough & Kaur [2012] FamCA 79 at [7]; BM v DA (2007) 39 Fam LR 168 at [245] and Re Patrick (2002) 28 Fam LR 579 at [291].
25. Section 60H is in the following form:
(1) If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and
(b) either:
(i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
(ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
(c) the child is the child of the woman and of the other intended parent; and
(d) if a person other than the woman and the other intended parent provided genetic material—the child is not the child of that person.
(2) If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;
then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.
(3) If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;
then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.
(5) For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.
(6) In this section:
this Act includes:
(a) the standard Rules of Court; and
(b) the related Federal Circuit Court Rules.
26. Section 60H(1) applies where a child is born to a woman as a result of the carrying out of an artificial conception procedure, but only in circumstances where the woman was married to, or a de facto partner of, another person. It deems the woman and her consenting partner to be parents to the exclusion of anyone else who provided genetic material. In this case, if Ms Bateman and Mr Kavan were in a de facto relationship at the time that Ms Bateman became pregnant, then Mr Kavan would be the father. If they were not in a de facto relationship, then subsection (1) does not apply.
27. Section 60H(2) applies only to the status of a woman who gives birth as a result of an artificial conception procedure. In this case, it means that Ms Bateman is the mother of [X]. This is a result of the application of section 14 of the Status of Children Act 1996 (NSW), which is a ‘prescribed law’ for the purposes of that subsection.[9]
[9]Family Law Regulations 1984 (Cth), reg.12CA.
28. Section 60H(3) applies only to the status of a man, when a woman gives birth as a result of an artificial conception procedure. Importantly, a necessary element for the operation of s 60H(3) is that laws have been prescribed for the purpose of the subsection. No laws have been prescribed for the purposes of the subsection, therefore it has no application.[10]
[10]If the s.14(2) and (4) of the Status of Children Act 1996 (NSW) had been prescribed then Mr Kavan would be deemed not to be the father.
29. As a result, if Ms Bateman and Mr Kavan were in a de facto relationship at the time Ms Bateman became pregnant, then Mr Kavan would be the father (s 60H(1)). If they were not in a de facto relationship, none of the deeming provisions in s 60H would apply to Mr Kavan. That is, s 60H would not have anything to say about whether or not Mr Kavan was the father of [X].
Who is a parent under the Family Law Act when s 60H does not apply?
30. As noted above, if a woman who is not married and not in a de facto relationship has a child as a result of an artificial conception procedure, then s 60H of the Family Law Act does not assist in determining the status of the man who provided his sperm for use in the procedure. In order to assess the status of the man in these cases, it is necessary to return to the ordinary meaning of parent discussed in Tobin & Tobin, and consider whether he has ‘begotten’ the child.
31. Several cases have noted that a man can be a parent of a child born as a result of an artificial conception procedure even if s 60H of the Family Law Act does not apply. Importantly, these decisions suggest that a ‘mere’ sperm donor, and particularly an anonymous sperm donor, would not be a parent for the purposes of the Family Law Act.[11] There are good public policy reasons for this including consistency with the general expectations arising out of State and Territory regimes dealing with sperm donation.
[11]Baker v Landon (2010) 43 Fam LR 675 at [45]; Groth v Banks (2013) 49 Fam LR 510 at [10]-[12].
32. A common element in these decisions is that a relevant factor in assessing whether someone has ‘begotten’ a child as a result of an artificial conception procedure is an intention to become a parent.[12] The first of these cases was Re Mark, in which Brown J considered the position of Mr X who had entered into a surrogacy arrangement with Ms S in California. Mr X provided his sperm which was used to fertilise an egg from an anonymous donor. When the child was born, Mr X was named as the father on the birth certificate.[13] The child was cared for from birth by Mr X and his partner Mr Y. Justice Brown said:[14]
[12]In the case of conception as a result of intercourse, the intention of the parties (for example, prior agreement between the parties that the man is not to be considered a parent) is irrelevant: ND v BM (2003) 31 Fam LR 22. Again, there are good public policy reasons for this.
[13]Re Mark (2003) 31 Fam LR 162 at [13] and [79].
[14]Re Mark (2003) 31 Fam LR 162 at 170, [59]-[60].
Mr X provided his genetic material with the express intention of fathering (begetting) a child he would parent. He is not a sperm donor (known or anonymous) as that term is commonly understood. …
I am satisfied that the ordinary meaning of the word ‘parent’ encompasses a person in Mr X’s position.
33. Ultimately, Brown J did not make a positive finding that Mr X was a parent for the purposes of the Family Law Act, bearing in mind that the issues raised were complex and there was no respondent or contradictor.[15]
[15]Re Mark (2003) 31 Fam LR 162 at [81].
34. The relevance of intent in cases dealing with artificial conception procedures can be seen in a number of other judgments. In BM v DA, the mother had collected semen samples from the respondent claiming that they were for the purpose of genetic testing. Instead, she used those samples to artificially inseminate herself. In finding that the respondent was not a ‘parent’ for the purposes of the CSA Act, Henderson FM noted that the lack of consent and deceit involved set the case apart from other cases including Re Mark.[16]
[16]BM v DA (2007) 39 Fam LR 168 at [252]. This case dealt primarily with the CSA Act and Henderson FM endorsed the narrow definition of ‘parent’ in B v J (note that this case was prior to the 2009 amendments to the CSA Act). However, her Honour recognised the potential for a broader definition of ‘parent’ under the Family Law Act and the relevance of intention saying: ‘It may be that for the purposes of the FLA Act the finding I have made may be different where the sperm or ovum donor is known to both parents and there has been an agreed and consensual arrangement between them to produce a child. I am not dealing with such a matter. The lack of consent and deceit in this case sets it apart from the authorities I have referred to’.
35. In Baker v Landon, Ms L and Mr B were in a de facto relationship and Ms L became pregnant as a result of an artificial conception procedure.[17] By the operation of s 60H(1) of the Family Law Act, this meant that Ms L and Mr B were parents to the exclusion of the anonymous sperm donor. However, Riethmuller FM went on to consider what status the sperm donor would have had if Ms L and Mr B had not been in a de facto relationship. His Honour said:[18]
[17]Baker v Landon (2010) 43 Fam LR 675.
[18]Baker v Landon (2010) 43 Fam LR 675 at [42]-[45].
The importance of identifying persons who created the child in the sense of parents as procreators or generators can be seen starkly in a hypothetical example. If a man were to donate semen for research alone and the semen were mistakenly used for insemination, then in no meaningful sense could he be considered a parent who had begotten the child, other than through biological similarity. The donor in this case had relinquished any property in the genetic material and relinquished any control over its use.
The donor, in this case, does not appear to have procreated or created the child in the relevant sense as he had no contact with, nor ever knew of the mother. In this case the donor would not be aware of the actual use made of the genetic material, or if it was used at all. It is difficult to describe him as a person who had ‘begotten’ the child. A person in this position can not have been contemplated as a person who would have shared parental responsibility for the child under the Family Law Act. This is in sharp contrast to the facts in Re Mark where the involvement of the man who provided the sperm desired, and directly facilitated, the particular conception.
On the dictionary definition it appears that the donor in this case is not a ‘parent’ of the child in the sense the term is used in the Family Law Act, but simply a donor of genetic material. …
Such an interpretation based upon the ordinary meaning of the term (as extrapolated from the decision of Brown J in Re Mark) sits comfortably with other provisions of the legislative schemes. It protects the donor’s anonymity, and the recipient’s anonymity from the donor. The significant duties and obligations imposed upon parents by the Family Law Act are not imposed upon an unknown person who has donated biological material in the expectation (fulfilled in State law) that there would be no duties or obligations to the child.
36. Finally, Groth v Banks dealt with a woman and a man who agreed to have a child together and to raise the child as separated parents.[19] They underwent a program of IVF using sperm donated by the man. The man applied for a declaration that he was a parent. Section 60H(1) of the Family Law Act did not apply because the parties were not in a relationship. Justice Cronin held that:[20]
[19]Groth v Banks (2013) 49 Fam LR 510.
[20]Groth v Banks (2013) 49 Fam LR 510 at [16].
The applicant fits that presumption in the Act of who is a parent. He is the biological progenitor and one of two people who set about a course of conduct with the intention of fathering a child.
His Honour found that the applicant was a parent.[21]
[21]Groth v Banks (2013) 49 Fam LR 510 at [40].
37. These cases indicate that the definition of parent for the purposes of the Family Law Act in cases of children born as a result of artificial conception procedures is wider than the class of people covered by s 60H.
38. The importance of intention in cases involving artificial conception procedures is reinforced by considering the position of the other intended parent under s 60H(1) of the Family Law Act. The partner of a woman who gives birth to a child as a result of an artificial conception procedure is referred to in the legislation as the ‘other intended parent’. That person will only be considered to be a parent if he or she consented to the carrying out of the procedure.[22]
[22]See s.60H(1)(b)(i) and, in the case of a child born in New South Wales, s.14 of the Status of Children Act 1996 (NSW), prescribed for the purposes of s.60H(1)(b)(ii) of the Family Law Act by the Family Law Regulations 1984 (Cth), reg.12C.
Child Support (Assessment) Act: satisfaction by the Registrar that a person is a parent
39. The CSA Act allows for applications to be made to the Registrar for administrative assessment of child support.
40. A parent of a child may apply to the Registrar under s 25 if he or she applies for both parents to be assessed in respect of the costs of the child and the applicant is not living with the other parent as his or her partner on a genuine domestic basis.
41. Division 2 of Part 4 of the CSA Act sets out how the Registrar is to make a decision once an application for administrative assessment of child support is made. Section 29(2) and (3) set out the circumstances in which the Registrar is to be satisfied that a person is a parent of a child. They relevantly provide:
(2) The Registrar is to be satisfied that a person is a parent of a child only if the Registrar is satisfied: …
(b) that the person’s name is entered in a register of births or parentage information, kept under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, as a parent of the child; or
…
(i) that the person is a parent of the child under section 60H or section 60HB of the Family Law Act 1975.
(3) If:
(a) 2 or more paragraphs of subsection (2) are relevant to a particular application; and
(b) those paragraphs, or some of them, conflict with each other;
the paragraph that appears to the Registrar to be the more or most likely to be the correct presumption prevails.
42. There are nine subsections in s 29(2), each of which provides an alternative means by which the Registrar could be satisfied that a person is a parent of a child. The relevant circumstances in this case are (b) and (i). As noted above in the section dealing with the Family Law Act, it appears that the circumstance in (b) is established because Mr Kavan’s name has been entered into a register of births as the father of [X].
43. If Ms Bateman and Mr Kavan were in a de facto relationship at the time that Ms Bateman became pregnant, then he would be the father under s 60H of the Family Law Act. In those circumstances, there would be no conflict between the application of paragraphs (b) and (i) as they would both point to Mr Kavan being the father.
44. If Ms Bateman and Mr Kavan were not in a de facto relationship, none of the deeming provisions in s 60H would apply to Mr Kavan. In those circumstances, there would also be no conflict between the application of paragraphs (b) and (i) because only (b) would have any application.
45. On the face of s 29, it appears that it was open to the Registrar to be satisfied that Mr Kavan was a parent of [X]. The Commission submits that in those circumstances the Registrar would apply the same principles as would be applied under the Family Law Act in order to determine whether Mr Kavan was a parent.
Child Support (Assessment) Act: definition of parent
46. While s 29 of the CSA Act appears to leave open the possibility of a person in Mr Kavan’s position being recognised as a parent, there is ambiguity as a result of the definition of ‘parent’ in s 5 of the CSA Act.
47. The Department of Human Services has referred to s 5 as the operative basis for the decision to refuse to accept Ms Bateman’s application.[23] Section 5 defines parent as follows:
[23]Letter from Department of Human Services to Ms Bateman dated 3 September 2013, annexure Q to the affidavit of Ms Bateman sworn 11 March 2014.
parent:
(a) when used in relation to a child who has been adopted—means an adoptive parent of the child; and
(b) when used in relation to a child born because of the carrying out of an artificial conception procedure—means a person who is a parent of the child under section 60H of the Family Law Act 1975; and
(c) when used in relation to a child born because of a surrogacy arrangement—includes a person who is a parent of the child under section 60HB of the Family Law Act 1975.
48. The meaning of this section was considered in B v J (1996) 21 Fam LR 186. At that time, the definition was limited to paragraphs (a) and (b), but the wording of these paragraphs was in substance the same. In B v J Fogarty J considered a situation where a man provided sperm in a container which was taken into another room and inseminated into a woman by her female partner. As a result of this procedure, the woman had a child. The man had been a friend of the mother for a number of years and was not in a relationship with her. The man and the two women had agreed prior to him providing his sperm that in no circumstances would he be liable to provide any financial support for any children born as a result. This procedure was repeated five years later on the same basis and another child was born. In each case, the man’s name was recorded as the father on the child’s birth certificate. Justice Fogarty found that the man was not a parent of the children for the purposes of the CSA Act.[24]
[24]Note that the same result would be reached today, but for different reasons. Section 60H(1) has since been amended to include same sex couples. Now, two women in a de facto relationship would both be parents where they consent to an artificial conception procedure, and the sperm donor would not be a parent as a result of s.60H(1)(d).
49. The basis for that decision was the use of the word ‘means’ in paragraph (b) of the definition of ‘parent’ in s 5. Justice Fogarty said:[25]
[25]B v J (1996) 21 Fam LR 186 at 190.
The effect of the use of the word “means” in that definition, rather than “includes” (or other similar expression), is, in my view, to provide an exhaustive definition within the context of the circumstances referred to, that is, of those two categories: see Sherritt Gordon Mines v FCT (1976) 10 ALR 441 at 455. Therefore, where the term “parent” is used in the Assessment Act in relation to a child born as a result of an artificial conception procedure, it means only a person who is a parent of a child under s 60H of the Family Law Act.
(emphasis in original)
50. The same reasoning had previously been applied in a similar factual situation by Hodgson J in the Supreme Court of New South Wales in W v G (1996) 20 FamLR 49 at 64.
51. As was identified by Fogarty J in B v J, Sherritt Gordon Mines v FCT is authority for the proposition that a definition that uses the word ‘means’ is generally intended to be exhaustive. However, all definitions of the meaning of words or phrases used in legislation are to be read as subject to the qualification ‘unless the contrary intention appears’.[26] Such an intention may be displayed where the definition provides that one thing shall be done and the Act or section in question provides that another shall be done.[27] As detailed below, the CSA Act now displays a contrary intention as a result of s 29(2) and (3) which describe how the Registrar is to decide whether a person is a parent of a child.
[26]Hall v Jones (1942) 42 SR (NSW) 203 at 207-208; Transport Accident Commission v Treloar [1992] 1 VR 447 at 449; Betella v O’Leary [2001] WASCA 266 at [13].
[27]Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104 at 108 (Mahoney JA).
52. There have been amendments to the CSA Act since the decisions in B v J and W v G. In particular, the Reform Act inserted s 29(2)(i) into the CSA Act with effect from 1 July 2009. The effect of this change was that a person’s status as a parent under s 60H of the Family Law Act was included as one of the things that the Registrar needed to consider in weighing up whether he or she was satisfied that the applicant was a parent. This can be seen from the operation of s 29(3): if two or more paragraphs of s 29(2) are relevant to a particular application and those paragraphs, or some of them, conflict with each other, then the paragraph that appears to the Registrar to be the more or most likely to be the correct presumption prevails.
53. This amendment seems to create an ambiguity between s 29 and s 5. Section 29 suggests that a person’s status under s 60H of the Family Law Act can be weighed against other criteria to determine whether a person is a ‘parent’ for child support purposes. The interpretation given to s 5 in B v J and W v G suggests that a person’s status (or non-status) under s 60H is determinative of whether a person is a parent for child support purposes.
54. The Commission submits that this ambiguity could be resolved by an interpretation that involves the Registrar taking the following steps when determining whether the person is a parent of a child born as a result of artificial conception procedures. First, to the extent that s 60H of the Family Law Act applied to either deem a person to be a parent or not to be a parent, the Registrar would make a determination consistent with the requirements of that section. This would be consistent with an object of the definition of ‘parent’ in s 5 that the answers given by an application of s 60H are to be binding. Secondly, to the extent that s 60H of the Family Law Act does not apply (ie, to the extent that s 60H says nothing about whether a particular person is a parent) the Registrar would consider whether any of the other criteria in s 29(2) apply.
55. Such an interpretation would allow consistency in the definition of ‘parent’ between the CSA Act and the Family Law Act.
56. Section 7 of the CSA Act provides that, unless the contrary intention appears, expressions used in the CSA Act, and in Part VII of the Family Law Act, have the same respective meanings as in Part VII of the Family Law Act. This tends to support an interpretation of s 29 of the CSA Act that would permit a person who is a parent for the purposes of the Family Law Act to also be a parent for the purposes of the CSA Act (provided at least one of the criteria in s 29(2) of the CSA Act is satisfied).
57. For the reasons set out in the following section, the interpretation described in paragraph 0 above would also be more likely to promote a child’s right under article 27(4) of the CRC to recover maintenance from his or her parents.
Resolving ambiguity in the Child Support (Assessment) Act: relevance of international law
58. It is well settled that legislative provisions that are ambiguous are to be interpreted by reference to the presumption that Parliament did not intend to violate Australia’s international obligations.[28]
[28]This principle was first stated in the Commonwealth context in Jumbunna Coal Mine No Liability v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363. It has since been reaffirmed by the High Court on many occasions: see, eg, Zachariassen v Commonwealth (1917) 24 CLR 166 at 181 (Barton, Isaacs and Rich JJ); Polites v Commonwealth (1945) 70 CLR 60 at 68-69 (Latham CJ), 77 (Dixon J), 80-81 (Williams J); Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38 (Brennan, Deane and Dawson JJ); Dietrich v R (1992) 177 CLR 292 at 306 (Mason CJ and McHugh J); Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 (Mason CJ and Deane J) (Teoh); Kartinyeri v Commonwealth (1998) 195 CLR 337 at 384 (Gummow and Hayne JJ); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 33 (McHugh and Gummow JJ); Al-Kateb v Godwin (2004) 219 CLR 562; Coleman v Power (2004) 220 CLR 1 at 91 (Kirby J). Despite his stringent criticism of the rule, in Al-Kateb at [63]-[65] McHugh J acknowledged that “it is too well established to be repealed now by judicial decision”.
59. The requirement of ambiguity has been interpreted broadly; as Mason CJ and Deane J observed in Teoh:[29]
[29](1995) 183 CLR 273 at 287-8.
there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail.
60. The principle that legislation is to be construed so as to give effect to, and not to breach, Australia’s international obligations assists in minimising the risk of legislation inadvertently causing Australia to breach international law. Any breach of international law occasioned by an Act of Parliament ought to be the result of a deliberate decision by Parliament. To this end, where a construction that is consistent with international law is open, that construction is to be preferred over a construction that is inconsistent with international law.[30]
[30]Teoh (1995) 183 CLR 273 at 362 (Mason CJ and Deane J); Chu Kheng Lim (1992) 176 CLR 1 at 38 (Brennan, Deane and Dawson JJ).
61. Here, there are two relevant principles in the CRC. These are:
61.1. in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration (article 3);
61.2. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad (article 27(4)).
62. In assessing the scope of the obligation in article 27(4), it is worth considering the right of a child in article 7(1) to be registered immediately after birth and to know and be cared for by his or her parents. It seems clear that the obligation to pay maintenance envisaged by article 27(4) would ordinarily extend to a person recorded as a father on a child’s birth certificate.
63. The other paragraphs of article 27 indicate why adequate provision for maintenance of children is important. Every child has the right to a standard of living that is adequate for his or her physical, mental, spiritual, moral and social development (article 27(1)). The primary responsibility for securing this standard of living falls to the child’s parents (article 27(2)). The shared nature of this obligation is reinforced by article 18 which emphasises that both parents have common responsibilities for the upbringing and development of their child.
64. Further, article 2 provides that States are to respect and ensure the rights set out in the CRC to each child without discrimination of any kind, irrespective of the status of his or her parents. This suggests that children born as a result of artificial conception procedures should not suffer discrimination in their ability to obtain maintenance from their parents, compared with the ability of other children.
65. In light of these principles, in our view there are good arguments to be made that an ambiguity about the scope of ‘parent’ under the CSA Act should be resolved in favour of an interpretation (which appears open on an ordinary reading of s 29) that would allow a person recognised as a parent under the Family Law Act to also be a parent for child support purposes under the CSA Act.
66. Such an interpretation would promote the human rights of children born as a result of artificial conception procedures because it would promote a child’s right under article 27(4) of the CRC to recover maintenance from people otherwise legally recognised as being their parents. This would be in the children’s best interests and would promote their right to an adequate standard of living.
Anomalies with the current position
67. As was recognised by Justice Fogarty at the time of the judgment in B v J, the interpretation of paragraph (b) of the definition of ‘parent’ in s 5 as exhaustive leads to anomalous results.[31] The reason for the anomaly is that s 60H itself is not exhaustive, but has been treated as such for the purposes of the CSA Act.
[31]B v J (1996) 21 Fam LR 186 at 196-197.
68. A person who is a parent under the Family Law Act but not under the CSA Act could still be the subject of an application for child maintenance under Division 7 of Part VII of the Family Law Act (Child maintenance orders). These provisions do not apply where an application can be made under the CSA Act.[32]
[32]Family Law Act, s.66E.
69. The principal object of the CSA Act and Division 7 of Part VII of the Family Law Act is the same, namely, ‘to ensure that children receive a proper level of financial support from their parents’.[33] It would be a strange result if child maintenance could be obtained from a person under the Family Law Act on the basis that they were a parent of a child, while child support could not be obtained from the same person under the CSA Act on the basis that they were not a parent of the child.
[33]Family Law Act, s.66B(1); CSA Act, s.4(1).
70. In a similar vein, Hodgson J in W v G noted that:[34]
[34]W v G (1996) 20 FamLR 49 at 65.
there may be a question as to whether it was really intended by the definition of “parent” in s 5 of the Child Support (Assessment) Act in effect to deprive a child of a right to support from a biological parent without substituting anyone else.
71. His Honour held that this was the effect of s 5, however, where there is ambiguity in the statute as a result of the 2009 amendments, his Honour’s question is a relevant one in considering whether such a result is consistent with the object and purpose of the CSA Act as a whole.
Applicant’s submissions
1. The present proceedings seek “Declaration that Mr Kavan is a “liable parent” in relation to the child [X] born [omitted] 2011 for the purpose of administrative assessment pursuant to the Child Support Assessment Act (1989)”.
The parties are:
The Mother: Ms Bateman
The child: [X] born [omitted] 2011, now aged 3 years
The Father: [X]’s father is Mr Kavan, acknowledged and deemed pursuant to section 69R Family Law Act 1975
Issues
2. The legal issues: Ms Bateman made an application for child support which was refused by letter dated 3 September 2013.
Issue 1: Mr Kavan is presumed to be [X]’s father pursuant to section 69R Family Law Act 1975. Does or can section 69R be over-ridden or displaced by section 60H Family Law Act 1975?
Issue 2: Does the definition provided pursuant to section 5(1) Child Support Assessment Act (1989) and section 60H Family Law Act 1975 exclude Mr Kavan from liability.
Issue 3: Should the discretion to be exercised by the Child Support Registrar pursuant to section 29 Child Support (Assessment) Act 1989 be exercised in favour of the object of the Act that children have a right to be maintained by both parents.
The factual issue: Were Ms Bateman and Mr Kavan in a de facto relationship at the time [X] was conceived?
It is not clear from the Child Support Agency letter of 3 September 2013 whether Mr Kavan opposed paying child support or whether the Child Support Agency has made a decision based on facts provided by Ms Bateman. Ms Bateman says in her affidavit that Mr Kavan found child support payments for his elder child [Y] burdensome.
In any event, the refusal is based on the Child Support Agency’s assessment that:
(a) Ms Bateman and Mr Kavan were not in a de facto relationship at the time [X] was conceived by IUI;
(b) despite Mr Kavan’s having signed the birth certificate, he is not deemed to be a parent for the purposes of the legislation.
THE LEGAL ISSUES
3. Issue 1: Mr Kavan is presumed to be [X]’s father pursuant to section 69R Family Law Act 1975. Does or can section 69R be over-ridden or displaced by section 60H Family law Act 1975?
There is a presumption that Mr Kavan is [X]’s parent pursuant to section 69R Family Law Act 1975.
69R. Presumption of parentage arising from registration of birth
If a person's name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child.
Therefore, there can be no doubt Mr Kavan is [X]’s father.
4. Issue 2: Does the definition provided pursuant to section 5(1) Child Support Assessment Act (1989) and section 60H Family Law Act 1975 exclude Mr Kavan from liability.
In order to make a parent liable under the Child Support (Assessment) Act 1989 Section 5 applies, but only in certain situations:
Section 5 Interpretation – definitions
"parent" :
(a) when used in relation to a child who has been adopted--means an adoptive parent of the child; and
(b) when used in relation to a child born because of the carrying out of an artificial conception procedure--means a person who is a parent of the child under section 60H of the Family Law Act 1975 ; and
(c) when used in relation to a child born because of a surrogacy arrangement--includes a person who is a parent of the child under section 60HB of the Family Law Act 1975.
5. The definition is not exhaustive and applies only in certain situations. Clearly, this definition of “parent” is not a closed class or the vast majority of parents would be excluded from liability. It relates only to bring in adopted children, children born via artificial conception and children born from a surrogacy arrangement, in circumstances where a child’s adoptive, non-biological AI, or non-surrogate parent might otherwise be excluded from liability.
6. The definition of “parent” does not include a natural parent or a parent who has acknowledged being a parent by signing the birth certificate. That is the case, with [X]’s father who has signed his birth certificate.
Therefore the definition is inclusory rather than exclusory. It is not an exhaustive list of who may be a liable parent. Without a doubt, the definition is intended to include ‘intended parents’ who accept the responsibility of parenthood but might otherwise not be liable rather than to exclude a parent who is without a doubt a natural parent and would in all other circumstances be a liable parent.
The section does not include the word “only” nor “and no other person” which one would expect if only those persons could be a “parent” for the objects of the Assessment Act.
The plain meaning of the definition is to bring in persons, not to exclude others.
7. See BvJ (1996) FLC 92 – 716, where the biological father provided sperm in a container which was taken into another room and inseminated into the mother by her female partner. It was found that the applicant was not a parent of the child for the purposes of the Child Support Assessment Act. The biological parent signed the birth certificate acknowledging parentage and thereby enlivening the presumption under section 69R. The impact of the biological father’s signing the birth certificate was not considered in BvJ. When considered, it is submitted the decision in BvJ must be wrong.
8. It is the finding of Justice Fogarty in BvJ at page 83619-20 which it is submitted is in error: “…it is the use in s.5 of the Assessment Act of the term “Means” which confines an artificial conception procedure “parent” to a parent under section 60H of the Family Law Act. The effect of that provision, as I have said, is that where a child is born as a result of an artificial conception procedure, for the purposes of the child support legislation, only s 60H parents are parents of the children.”
To distinguish between a child, the conception of whom is clear and undisputed (even though there are many other disputes regarding the relationship between the parents), and another child whose conception is equally clear and undisputed purely on the basis that, in one case, the genetic material of the two parents was introduced by vaginal intercourse and, in another, the genetic material of the two parents was differently introduced is unjust and would make, in the words of George Chapman, “an ass of the law”.
To treat a child born as the agreed product of the genetic material of two known and consenting individuals differently to another child, purely as the penis of one did not enter the vagina of the other, even though both are born in circumstances of equal certainty as to the donators of genetic material, the child’s “begetters” would be, I am satisfied, inherently unjust.
The simple reality that this young lad has been conceived from one parent’s sperm and the other’s egg, without vaginal intercourse as the mechanical means of conception, should be irrelevant. He is born of two known individuals who acknowledge that fact. The child has a right to know that and a right to be financially supported by both in accordance with the means of those individuals and in accordance with law.
I do not propose to canvass the arguments otherwise raised within the submissions of the Australian Human Rights Commission and of which the Applicant’s submissions are entirely consistent and complimentary, save to indicate that they are accepted in their totality. And to the extent that statements as to the law and suggested approach of the Child Support Registrar are contained therein they are adopted by me as the Reasons delivered herein.
What is abundantly clear from the various provisions of the International Convention on the Rights of the Child as are identified in submissions is that this young child has rights. Indeed, children born into this world, irrespective of how that may have occurred, have equal and universal rights. The child’s rights include the right to know his parentage socially, psychologically, emotionally, medically and financially.
There is an abundant body of research in the modern world relating to children who are removed from family, children who have been adopted and children born as a consequence of artificial conception procedures, particularly those born from procedures with anonymous donors. That research alerts the community, of which the Court is a part, to the great distress that can be caused for children by and as a consequence of being deprived of that right to have knowledge of these matters.
There should be no distinction between this child and any other child whose donator of genetic material is clearly known and based upon a distinction drawn purely on the means by which fertilisation of a human egg occurred. The child has a right to know his parentage and, as is indicated by the submissions of the Australian Human Rights Commission and those of the mother, a right to receive financial support from his parents.
In all of those circumstances and for those reasons, by and large based upon an acceptance in totality of the cogent and erudite submissions of the Australian Human Rights Commission, I make the orders that are sought by the parties and being in accordance with Exhibit A, which I sign and date today and place upon the Court file.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Harman.
Associate:
Date: 20.11.2014
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Consent
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Costs
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Procedural Fairness
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Statutory Construction
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