KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
MASSON APPELLANT
AND
PARSONS & ORS RESPONDENTS
Masson v Parsons
[2019] HCA 21
19 June 2019
S6/2019
ORDER
1.Appeal allowed.
2.Set aside orders 2, 3, 4 and 8 made by the Full Court of the Family Court of Australia dated 28 June 2018 and, in their place, order that appeal number EA 111 of 2017 be dismissed.
3.The first and second respondents pay the appellant's costs of the appeal to this Court.
On appeal from the Family Court of Australia
Representation
M P Kearney SC and C L Lenehan with E A Lawson and D P Hume for the appellant (instructed by Steiner Legal)
B W Walker SC with M McMahon and J S Stellios for the first and second respondents (instructed by McDonald Johnson Lawyers)
S B Lloyd SC with S M Christie SC and P D Herzfeld for the third respondent (instructed by Legal Aid NSW)
S P Donaghue QC, Solicitor-General of the Commonwealth, with B K Lim for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
R M Doyle SC with F I Gordon for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Masson v Parsons
Constitutional law (Cth) – Courts – Federal courts – Federal jurisdiction – Matter arising under Commonwealth law – Where Commonwealth law provides rules in respect of parentage of children born of artificial conception procedures – Where State law provides irrebuttable presumption that biological father of child conceived by fertilisation procedure is not father in specified circumstances – Whether s 79(1) of Judiciary Act 1903 (Cth) operates to pick up and apply text of State law as Commonwealth law – Whether State law regulates exercise of jurisdiction – Whether Commonwealth law has "otherwise provided" within meaning of s 79(1) of Judiciary Act – Whether tests for contrariety under s 79(1) of Judiciary Act and s 109 of Constitution identical – Whether State law applies of its own force in federal jurisdiction.
Family law – Parenting orders – Meaning of "parent" – Where Family Law Act 1975 (Cth) presumes best interests of child served by shared parental responsibility – Where s 60H of Family Law Act provides rules in respect of parentage of children born of artificial conception procedures – Where appellant provided semen to first respondent to conceive child with belief that he was fathering child – Where appellant had ongoing role in child's financial support, health, education and general welfare and enjoyed extremely close and secure attachment relationship with child – Where first respondent later in de facto relationship with second respondent – Where appellant found to be "parent" within ordinary meaning of word but not under s 60H – Whether s 60H exhaustive of persons who may qualify as "parent" of child…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Masson v Parsons
Sign in free to access the full text
Details
AGLC
Masson v Parsons [2019] HCA 21
Case
[2019] HCA 21
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by a man, the appellant, against a decision of the Full Court of the Family Court of Australia. The dispute concerned whether the appellant was a "parent" of a child conceived via artificial insemination, for the purposes of the *Family Law Act 1975* (Cth). The appellant had provided semen to the first respondent, with whom he was a friend, for the purpose of her conceiving a child. He believed he was fathering the child and intended to support and care for her. His name was placed on the child's birth certificate. The child lived with the first respondent and her de facto partner, the second respondent. The appellant maintained a close and involved relationship with the child, contributing to her financial support, health, and education.
The legal issues before the High Court included whether section 60H of the *Family Law Act* was exhaustive of the persons who could qualify as a "parent" of a child born of an artificial conception procedure, or whether the ordinary meaning of "parent" could apply in addition to that section. The Court also considered whether a State law, which provided an irrebuttable presumption that the biological father of a child conceived by a fertilisation procedure was not the father in specified circumstances, applied of its own force in federal jurisdiction, or if section 79(1) of the *Judiciary Act 1903* (Cth) operated to pick up and apply that State law as Commonwealth law.
The High Court reasoned that it was unnecessary to definitively determine whether the appellant was a "sperm donor" or a "parent" under the ordinary meaning of the word, as the primary judge had already concluded he was a parent in the circumstances of the case, and no reason had been shown to doubt that conclusion. The Court also determined that the State law in question did not apply of its own force in federal jurisdiction. The Court allowed the appeal, setting aside the orders of the Full Court of the Family Court and dismissing the appeal to that court, with costs awarded to the appellant.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside orders 2, 3, 4 and 8 made by the Full Court of the Family Court of Australia dated 28 June 2018 and, in their place, order that appeal number EA 111 of 2017 be dismissed.
3. The first and second respondents pay the appellant's costs of the appeal to this Court.
Background
Background to the litigation
There is also a question of whether ss 14(2) and 14(4) of the Status of Children Act are valid laws applying of their own force to applications for parenting orders made under Pt VII of the Family Law Act as part of the single though composite body of law in Australia. For the reasons which follow, that question should also be answered: "no".The facts The appellant and the first respondent were close friends for many years. In 2006, the appellant provided his semen to the first respondent in order that she might artificially inseminate herself and as a result conceive a child, which she did. At the time of conception, the appellant believed that he was fathering the child and that he would, as the child's parent, support and care for her. His name was entered on the child's birth certificate as her father. Although the child thereafter lived with the first respondent and the second respondent, who is the first respondent's female partner, the appellant took his relationship with his child seriously. He had and continues to have an ongoing role in her financial support, health, education and general welfare, and he enjoys what the primary judge described as an extremely close and secure attachment relationship with the child. By 2015, the first and second respondents resolved to relocate from this country to New Zealand and to take the child with them. The appellant responded by instituting proceedings in the Family Court of Australia for orders, inter alia, conferring shared parental responsibility between himself and the first and second respondents; restraining relocation of the child from the child's current area of residence in Australia; providing for the child to spend time with the appellant in a fortnightly cycle, five nights per fortnight, half school holidays and other special times; and addressing specific issues including overseas travel and communication.Relevant statutory provisions(i) Family Law Act Parenting orders are made under Pt VII of the Family Law Act[1]. Division 2 of Pt VII of the Family Law Act deals with "the concept of parental responsibility"[2].[1]Family Law Act 1975 (Cth), s 64B(1) and (2).[2]Family Law Act, s 61A. Section 61D(1) provides, in substance, that a parenting order confers parental responsibility for a child on a person to the extent that the order confers on that person duties, powers, responsibilities or authority in relation to the child. Section 61DA provides, in substance, and so far as is relevant, that, when making a parenting order in relation to a child, the court must apply a rebuttable presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. Subdivision B of Div 1 of Pt VII, which is headed "[o]bject, principles and outline", provides, inter alia, in s 60B(1) that the objects of Pt VII include "ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child" (emphasis added).
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ
EDELMAN J
It is unnecessary to decide whether a man who relevantly does no more than provide his semen to facilitate an artificial conception procedure that results in the birth of a child falls within the ordinary accepted meaning of the word "parent". In the circumstances of this case, no reason has been shown to doubt the primary judge's conclusion that the appellant is a parent of his daughter.Conclusion It follows from these reasons that the appeal should be allowed. Orders 2, 3, 4 and 8 of the Full Court of the Family Court of Australia dated 28 June 2018 should be set aside. In their place, it should be ordered that appeal number EA 111 of 2017 to the Full Court be dismissed. The first and second respondents should pay the appellant's costs of the appeal to this Court. This appeal concerns federal jurisdiction. In the terminology used in the field of federal jurisdiction there are at least three distinct concepts relevant to this appeal. First, there is "jurisdiction", which means an authority to decide. Federal jurisdiction is therefore a federal authority to decide. It has a personal dimension concerning the persons over whom authority to decide is exercised. It has a territorial dimension concerning the geographical area within which authority to decide can be exercised. And it has a subject matter dimension concerning the issues in respect of which authority to decide can be exercised. Secondly, there are the powers that can be exercised by a court to make substantive orders when there is federal authority to decide. These include powers to impose criminal penalties, to award damages, to grant specific performance, injunctions or declarations, and so on. These orders can give effect to the rights, powers, duties, and liabilities of persons at general law or under statute. They can sanction an infringement of rights. And, on some occasions, the court's substantive orders will themselves define new rights or duties[49]. The boundaries within which the court's powers to make these substantive orders can be exercised are determined by the scope of the court's authority over person, place, and subject matter.[49]See Zakrzewski, Remedies Reclassified (2005), ch 13. Thirdly, there are laws that regulate or govern the federal authority to decide within which these substantive orders are made. Sometimes these laws are described as laws that "regulate the exercise of federal jurisdiction"[50] or laws that "command a court as to the manner of exercise of federal jurisdiction"[51]. They are laws that concern aspects of federal jurisdiction such as how persons are served or made subject to authority, when a matter can be adjudicated, or the manner or process by which a matter is to be adjudicated. They are not limited to procedural laws or procedural powers of the court, although the most obvious examples are the rules of evidence and the rules of procedure[52].[50]Alqudsi v The Queen (2016) 258 CLR 203 at 266 [171]; [2016] HCA 24; Rizeq v Western Australia (2017) 262 CLR 1 at 25 [59], 26 [62]; see also at 53-54 [144]; [2017] HCA 23.[51]Rizeq v Western Australia (2017) 262 CLR 1 at 26 [61]-[62].[52]Rizeqv Western Australia (2017) 262 CLR 1 at 55 [151], 59 [163], 72-73 [200].
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ,
EDELMAN J