Masson v Parsons & Ors

[2019] HCATrans 81

[2019] HCATrans 081

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S6 of 2019

B e t w e e n -

MASSON

Appellant

and

PARSONS

First Respondent

PARSONS

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

Third Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 17 APRIL 2019, AT 9.52 AM

(Continued from 16/4/19)

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   If it please the Court.  Your Honours, it has been drawn to my attention that a footnoted explanatory memorandum is not the one that I had in mind when I made a comment to your Honours yesterday concerning the intended function, according to political speech in the House, for 60H and related provisions.

I have had provided to your Honours and to our friends the explanatory memorandum for the Family Law Reform Bill 1994, which can be thought of as the iteration of legislation by which a former 60B became the current 60H and I simply wanted to draw to your attention, without dwelling on it, the statement, for what it is worth, in section 5 of the general outline that the Attorney‑General delivered on page 3, the second last dot point.

It is germane to a degree with the final point that I wish to make to conclude my submissions. We are up to the stage where, if section 14 is not capable of being picked up by section 79, then that would be on account of characteristics which would permit it to simply apply of its own force. Of course, any State law applying of its own force so as to affect the exercise of federal jurisdiction must of course survive scrutiny under section 109 and that is the final point to which I want to come. I have already said what I want to say, borrowing also from what we have put under section 79 concerning “otherwise providing” about why section 60H itself does not constitute any section 109 inconsistency.

That leaves, we think, a matter which has permeated a deal of the strands of argument from all parties in the case, namely, the meaning of the word “parent” in the Family Law Act, particularly in light of questions as to whether, for example, the provision of a requisite gamete – what is sometimes called the biological form of parenthood – is either necessary or, for that matter, sufficient.  That is only one of the aspects of the discussion that is started by the use of a word of ordinary English, namely, “parent”, in a statute which provides for rights, obligations, some of which of course carry ultimately some consequential criminal sanctions.

So it is an ordinary English word, with meaning which may vary from time to time, perhaps even place to place within the anglophone community and it is one which, as Lady Hale has pointed out, has been understood, again from time to time and in different societies, to not be monolithic in its either requirement for a biological relation or, for that matter, the adequacy of what has been called social or psychological relations so as to constitute one person the parent of another, even in the absence of any biological relation or, indeed, the historical act of giving birth to the baby in the case of a woman.

We understand that one of the – or perhaps the critical section 109 question arises as to whether the general ambit of the concept “parent” given its meaning in the Family Law Act not exhaustively defined as everyone has noted, is such as to present a 109 inconsistency with the blunt command of section 14(2) of the State Act which says that a person who provides an artificial conception birth, the male gamete is not on that account to be regarded as the parent.

In our submission, there is a necessary assumption before there could emerge any such arguable inconsistency and the necessary assumption is that as things stand at the moment without there having been any amendments but with social conditions perhaps altering the denotation of the unaltered statutory word “parent”, we submit that there is a necessary assumption in the argument against us that it already incorporates a sperm donor, by which I mean a person of whom nothing more need be true for that character to be accorded to him than that there has been the gamete supplied.  In particular, nothing need to true concerning social relation or even mutual knowledge between the provider of the male gamete and the woman who gives birth to the child concerning the identity of the former.

GAGELER J:   Are you saying it is an assumption in the argument against you?

MR WALKER:   Yes.  Yes.

GAGELER J:   It appears not to have been the assumption of the trial judge.

MR WALKER:   No, that is correct, your Honour.  That is correct.  In our submission, that is an assumption which is not soundly based.

KIEFEL CJ:   You say it is an assumption in each of the arguments put against you?

MR WALKER:   Yes, yes.  There is another way in which the argument is put which builds on that, namely, social relation on top of that.

KIEFEL CJ:   Yes, well, that is somewhat of a qualification, is it not?

MR WALKER:   It is a very important one, but I want to take it component by component.  As to the what I will call mere gamete provider, I have already ‑ ‑ ‑

GORDON J:   Before you progress with that submission, is the assumption that “parent” includes someone who you describe as a sperm donor?  What is the assumption actually that you say underpins the argument against you?

MR WALKER:   Part of the assumption, or the relevant assumption I am addressing at the moment, is that a person who provides the male gamete, even if there is no other aspect of relation, is within the ordinary meaning of the word “parent” as used in the Family Law Act.  I have already put yesterday, I do not want to repeat by way of any further elaboration, that that in our submission is not within the ordinary meaning of the word “parent”.

GORDON J:   So I have a married couple where the man provides the gamete, and they have artificial conception, artificial insemination, in vitro – he is not the parent?

MR WALKER:   No, no, he would be the parent, but for other reasons.  He is the parent clearly in ‑ ‑ ‑

GORDON J:   For other reasons?

MR WALKER:   Under 60H(1) he is plainly the parent.  The point I want to make is that 60H(3) comprehends the possibility that I have just noted.  It comprehends, that is, a potential case that if there were an available Commonwealth, State or Territory law, it could bring about parenthood by prescription.

It would be completely unnecessary in that respect were it true that already the word “parent” incorporates that bare relation.  I am not talking about the relation of a kind that Justice Gordon has raised, I come to that in the next step, but the bare relation of provision of male gamete is, in our submission, not as a matter of ordinary English within the word “parent” as it was originally used or as it may have been altered by social conditions without any alteration of the meaning of the statute.

Next, in our submission, you can see from the text, section 60H(3), that it would be – that is an argument which, in effect, renders certain provisions otiose which is not a correct way to read the statute and one then looks at the other side of the coin which is where there is far more than the bare relation of provision of a male gamete. 

The obvious case of parentage without biological link is, of course, adoption and adoption has for so long and in so many circumstances been regarded as constituting a person - a parent of a child without even the mother giving birth to the child and certainly without the father having provided any gamete for the conception of the child.  If anything ‑ ‑ ‑

GORDON J:   Is the provision – sorry to interrupt, just so I am clear about this – is this submission required from your perspective because you assert or submit that 60H is exhaustive?  In other words, if you are wrong about that, none of this is necessary because the way in which the trial judge deals with it would be by reference to the three things that you are now addressing.

MR WALKER:   No is the answer.  It is an argument that ‑ ‑ ‑

GORDON J:   No is an answer, but?

MR WALKER:   I am not advancing it for the purposes of supporting the argument that I have dealt with yesterday about the so‑called exhaustiveness of 60H.

GORDON J:   No, I am asking you whether this argument is even necessary if you are wrong about that?  It does not arise.

MR WALKER:   No, it does arise.  This is where we say if section – the premise to this is section 14 cannot be picked up because of its character in which case, subject to 109, it applies of its own force and now I am simply addressing 109, that is all.  It is what happens when, contrary to my main argument, section 14 is accorded a character which again, contrary to my main argument, apparently cannot be picked up under section 79.  That is because it is simply a law which applies because it is part of the law of the land. 

However, being a State law, obviously enough, it has to survive the furnace of section 109 and that is what all this is directed to. I have identified that by elimination one is left with the putatively inconsistent Commonwealth provision simply being the meaning of the word “parent” because I accept that if the meaning of the word “parent” did comprehend the mere provider of a male gamete then subsection 14(2) will be pro tanto invalid, that is, inoperative, because of that inconsistency. The Commonwealth law would say yes, the State law would purport to say no. It is a straight direct inconsistency.

I accept, however, that it is only the first step to talk about the bare relation of the provider of a male gamete because there are other relations and my point is this:  when one goes to the other end of the spectrum, as I say to the most profound social and psychological relation of parent without any biology ‑ that is, the adopting parents, whether it be lawful or informal adoption, it does not matter for present purposes – then, in our submission, one asks, well, surely, on this idea of a flexible, fluid meaning for the word “parent” surely adopting parents are within it.  And yet, as one might expect in a statute about status, meaning bright lines and perhaps involving criminal sanction, clearly the Family Law Act does not regard the mere use of the word “parent” as apt or appropriate or adequate, as fit for purpose, to encompass that status without fervour and so we have section 60F.

EDELMAN J:   Is this submission, essentially, to say that the meaning of “parent” in the Family Law Act is broadly an evaluative approach and by which any particular factor may be sufficient but none of which is necessary and on that evaluative type approach there will not be any inconsistency by introducing particular rules or irrebuttable presumptions that govern that approach?

MR WALKER:   Your Honour, that is my last argument.  It is about a minute away.  But before I get to that, there is quite a different point I am trying to make at the moment and that is simply that one would not read the word “parent” in that – I will call it inflected and fluid way ‑ so as to include the mere provider of the gamete or, for that matter, somebody who only has the strong social psychological link, such as adopting parents have, because there are provisions in the statute that attend to the way in which the statute is to apply to such children.

I drew to attention that is, at least, what the Minister introducing the Bill during one of the iterations thought this was doing.  Now, it is a matter for your Honours as to whether the Minister was correct in that.  But we submit that is manifestly what 60F is doing for adopting parents.  It is manifestly, we submit, also what 60H is doing in cases of artificial conception.  In short, those are provisions that indicate that for Parliament the word “parent” did not already extend to cover those cases and, therefore, there is not a meaning of “parent” which clashes with section 14.  That is my second last argument.

Of course my last argument is:  but if it is fluid in this fashion it is fluid because things change in the way society operates.  This is this difficult notion of a word not altering its meaning at the highest level in law but, nonetheless, the content of the facts that will make out satisfaction or not of what the word requires being able to alter and reflect changing social conditions.  It is not, in our submission, a particularly straightforward argument to apply to a word like “parent” which does not lend itself obviously enough to the kind of rapid, discrete and obvious changes such as one sees in technology or industry.

EDELMAN J:   What is the core or, in your words, the higher level meaning of “parent” that does not change?

MR WALKER:   By elimination, in our submission, it involves the biological link of both putative parents to the child so that it provides for the rebuttal of a presumption from registration by demonstration, either by evidence concerning access between the parents named in the register, or perhaps DNA testing, to show that the reputed father is not the father.

That, in our submission, is a commonplace and ordinary understanding that, notwithstanding somebody may have thought he was the father and behaved so for 25 years, that there can be demonstration in that fashion by techniques which can be legally deployed by the provisions you were taken to yesterday, that would result in showing that that man is not the father, and is therefore not a parent.

Now, that does not mean that that man is ineligible to seek the benefit, such as they be, of a parenting order.  That would be outrageous, and obviously not contemplated by Parliament, bearing in mind the kind of people who can apply for parenting orders.

Bearing in mind that the actual father in that case, that is the real parent – and I am using that word as the statutory term – might be a person who, although liable to suffer maintenance obligations and the like, would undoubtedly find it difficult to maintain the presumption, say, of equal parental responsibility, bearing in mind in the hypothetical anecdote I am referring to, he has had nothing to do with the child since shortly after conception.

The Family Law Act takes all of that in its stride by the concatenation of circumstances that have to be taken into account in the best interests of the child when considering parenting orders – your Honours have had your attention drawn to them.  So, yes, the core meaning has to be, in our submission, biological in order to make any sense of the proposition that the person who thought he was the father, and is on the register as such, 25 years later, without any adoption order that would be an answer to all of this, finds that, alas, he is not.

Now, that does not mean that the social and psychological relation is ignored, or is being, by some formalistic analysis, inappropriately deprecated, far from it.  All the provisions in the statute to which your attention has been drawn, in relation to parenting order in particular, will loom not only large, but will be to the forefront of any dispute if, most

unfortunately, any such dispute ever arose.  And, in our submission, that is an entirely satisfactory approach to the definition, in a statute that must have some sharp edges, because of the way in which it ultimately proceeds to allocate responsibility, some of which are sanctioned.

It is for those reasons, in our submission, that the entry of section 14 ‑ as it so happens to be uniform at State level, but it need not be for the purpose of this argument – the entry of section 14 in New South Wales is not something which can be seen in any way to jar with the Family Law Act, which has section 60H to deal with the case of artificial conception, which of course is different from the biological relation which constitutes the usual understanding of the word “parent.”  Those are our submissions.

KIEFEL CJ:   Thank you.  Reply, Mr Kearney?

MR KEARNEY:   Mr Lenehan will make those submissions, if it please the Court.

MR LENEHAN:   Your Honours, in terms of the status point, we adopt what was said by the third respondent as to the construction of the State Act and we make these additional points.  First, we gave to your Honours yesterday the extract from Wigmore that we think Justice Edelman had in mind and the point made there, which we embrace, is that a conclusive presumption is in truth not a presumption at all but a rule of substantive law.

GAGELER J:   Is that so if it is conclusive for some purposes and not for others; conclusive in civil proceedings but not in criminal proceedings?

MR LENEHAN:   At least in the area to which it applies we say yes, your Honour.  I was going to come back to that point and the point your Honour made yesterday.  That, in our submission, in fact demonstrates the point we seek to make, that is, the fact that the Act specifically disapplies presumption in some circumstances suggests that in all others perhaps it is applied as a general proposition.  We say that in fact helps us.

Going back to Wigmore, we say that what is said by the learned authors there is also consistent with what was said by Justice Isaacs in a case that is not in the joint bundle, but I will give your Honours the reference and then say what it says.  It is Williamson v Ah On (1926) 39 CLR 95 at 108. His Honour there said that effect of a provision conclusively deeming a person in possession of stolen goods is not merely evidentiary; it is in fact the parliamentary creation of a new offence of theft. It has that substantive effect.

The second point we make is to embrace Mr Lloyd’s explanation of the purpose of section 18 of the State Act and to note in addition the point that I just made to Justice Gageler, that is, that sections 17 and 18 are each simply narrow instances of where the rule is disapplied.

Your Honours will recall that Mr Walker yesterday accepted that section 17 had, in fact, a very narrow operation, perhaps limited to what he described as the striking circumstances involving an erroneous finding by a prescribed court referred to in section 12, and we adopt the point made by your Honour the Chief Justice that that may be considered to be, if you like, an abundance of caution clause to deal with contingencies that the drafter apprehends but cannot perceive in specific terms.

GAGELER J:   Mr Lenehan, could I take you up on section 18.  I understand the submission about the purpose of section 18, does it go so far as to say that section 18 applies only in respect of the presumption in section 12 and not in respect of the presumptions in section 14; is that where the submission leads?

MR LENEHAN:  I think the answer is yes, your Honour.  The third point we make is to respond to the points that Mr Walker made yesterday, that is that even accepting our submission that what is involved is some form of generally applicable rule, such a law is able to be picked up by section 79.  Now, we understood him to accept in that regard the following propositions that were put by my learned leader, Mr Kearney.

The first is the key to understanding the operation of section 79 is, of course, the incapacity of State Parliaments to regulate the exercise of federal jurisdiction.  The second is that section 79, the key to understanding it, is that it is directed to those laws, the laws that govern or regulate the exercise of jurisdiction, and that it has no wider operation.

The third point is that, as a consequence, it is therefore limited to State laws conferring or governing the powers that State courts have when exercising jurisdiction.  Now, where we part company with Mr Walker is that he advances what we submit is an overly expansive, and we say, wrong notion of the laws that regulate or govern the exercise of jurisdiction.

Effectively, as we understand what he says, a generally applicable rule that in its application to a court dictates to the court how it is to proceed by, we say, imposing what we say is a substantive rule, that is a law of the nature picked up by section 79.  But your Honours will recall that yesterday Mr Walker had some difficulty in sensibly distinguishing between offence‑creating provisions, like section 6 of the Misuse of Drugs Act in issue in Rizeq, and the law in issue here, and we make the following points in that regard.

Both, assuming the correctness of my first two propositions, are generally applicable rules which have consequences in terms of rights and obligations.  Both rules, it is true, involve matters that are at least ultimately only authoritatively determined by a court but their operation as substantive rules having application, to use the words of Rizeq, independently of anything done by a court.  That is what, in our submission, marks them out as laws that are not picked up by section 79.

Now, my final point on this topic, we understood Mr Walker to seek to distinguish Rizeq by relying on the notion that a presumption is something which speaks, in particular, to a court but for the reasons we have given, and picking up what is said in Wigmore, the term “presumption”, we say, is a misnomer when applied to a presumption that is irrebuttable and we say the use of that label in a statute does not alter the substance of what has been done by the legislature.

The final point before I leave this topic is to note that Mr Walker ultimately accepted that he did not depart from the submissions of the learned Commonwealth Solicitor‑General, and so our response to both sets of submissions is the same.

Can I then move, in global terms, to section 109 and “otherwise provides.” The first point is that we do adopt the submissions of the Commonwealth Solicitor‑General regarding the test to be applied, as regards “otherwise provides”. As your Honours will have seen, we make some similar submissions in writing and also orally yesterday.

The submissions of the respondents and Victoria are, as we understand it, on both 109 and “otherwise provides”, depend apparently critically on the proposition that section 60H is ‑ they use the words “exhaustive” or “exclusive” ‑ in providing for the circumstances in which someone they describe as a “sperm donor” is a legal parent.

Now, as we understand the argument, it goes from there, that sufficiently limits the operation of the Family Law Act in that area of putative parent sperm donors, such that there is no necessary contrariety between the Family Law Act and State law, including section 14(2).

Now, as a preliminary point there is, of course, some internal tension in that submission.  The submission seems to be on the one hand that section 60H is not, in fact, exhaustive or exclusive of State law yet it is exhaustive or exclusive in terms of other Commonwealth law.  We say that is an ambitious submission, particularly when there is no – as your Honours will have seen, no concurrent operational rollback clause in the Family Law Act.  Can I deal with the submission in its terms putting those difficulties to one side?

GORDON J:   Do you mind speaking up, Mr Lenehan, so I can hear?

MR LENEHAN:   I apologise, your Honour, yes.

GORDON J:   Thank you.

MR LENEHAN:   That submission depends in part in reading section 60H as if it is directed particularly to the subject of the parental status of sperm donors.  The difficulties that your Honour Justice Bell identified in argument yesterday and that is that the subject matter of section 60H is more general, it deals with certain matters related to artificial conception per se, including the position of both biological mothers and birth mothers, and you will recall that our friends placed emphasis on the special position of those persons yesterday ‑ we say, and I will come to this specifically, that that does not help them.

It is helpful, at this point, if your Honours have it, to return to the specific text of section 60H.  The first point the point that I have already alluded to, that is the artificial conception procedures to which section 60H refers ‑ see the inclusive definition in section 4 ‑ can involve “artificial insemination” or “the implantation of an embryo”.  There is no legislative preoccupation with the position of the sperm donors.

The second point is that the rule in 60H(1)(c) is addressed to the position of a birth mother.  It is the woman referred to in section (1)(a).  The rule in section 60H(2) is likewise addressed to the position of a birth mother, that is the woman referred to in subsection (2)(a).  In both cases the provisions are expressly agnostic as to whether the birth mother is also the biological parent of the child and you see that in section 60H(1) in the words that follow (ii):

whether or not the child is biologically a child of the woman –

You see that again in subsection (2) with the same words:

whether or not the child is biologically a child of the woman –

The result is that all gestational mothers are potentially within the scope of those provisions and that is so whether or not they are biological parents ‑ ‑ ‑

KIEFEL CJ:   Is that right or is the position of the birth mother, as you have referred to, already assumed to be a parent?  For instance, in subsection (1)(a) – is not subsection (1) directed to the other intended parent because the birth mother is already accepted to be a parent under an ordinary definition by reference to the part in parenthesis – the other intended parent ‑ which seems to assume that the birth mother is already recognised as a parent; that is the biological starting point.

MR LENEHAN:   We say for this reason, no, your Honour.  If your Honour looks, then, to subsection (c) it provides:

(c)      the child is the child of the woman and –

KIEFEL CJ:   “And” – it is acknowledging one and the addition of the other.

MR LENEHAN:   We would say that “child of the woman” – those words are effectively surplusage.

KIEFEL CJ:   Implicitly, the words are both “the child of the woman and of the other intended”.

MR LENEHAN:   Yes.  We say that the section has a further declaratory consequence and envisages that both of those people are a parent.  And that is the point that our friend, Dr Donoghue, developed yesterday in dealing with ‑ ‑ ‑

KIEFEL CJ:   You need to keep your voice up.

MR LENEHAN:   I apologise, your Honour – in dealing with whether there were in fact any parents here.

BELL J:   You say that in part because if you look at sub (1)(b) it proceeds after (ii) to state:

whether or not the child is biologically a child of the woman –

MR LENEHAN:   We do, your Honour, yes.  Can I also note that it is only the rule in section 60H(1)(d) which is addressed to what our friends say is, in fact, the real target of section 60H – that is, the position of sperm donors, along for that matter with persons providing embryos. 

Section 60H(2), in contrast, contains no such exclusionary rule and yet the effect, as we understand it, of the submissions made against us is that one is to read into subsection (2) a further rule in similar terms to subsection (1)(d) that are applicable more generally, so as to exclude effectively all sperm donors from parentage except if included by a law prescribed under subsection (3).

BELL J:   Mr Lenehan, I just would be assisted by your submission as to the function contemplated by sub (3).  As I understand the respondents’ argument, it is the Commonwealth Parliament addressed itself to the circumstance of a person whose relation to a child is that he is the donor of the sperm, and contemplated that a law might be prescribed by a Commonwealth State or Territory to cover that, and that would be brought in under sub (3) and, absent that, 60H remains a complete statement. 

MR LENEHAN:   Yes.  Your Honour would understand the submission that we make against that, which is effectively the submission that my learned leader, Mr Kearney, made in response to the question of the Chief Justice yesterday, that is section 60H deals with the cases it deals with.  Where those provisions are not engaged, the default position is that the Family Law Act ‑ ‑ ‑

BELL J:   I understand that submission.  I suppose I am really directing your attention to this.  Sub (3) is concerned with a law which provides, in stated circumstances, that a child will be the child of a man.

MR LENEHAN:   Yes. 

BELL J:   It clearly contemplates that that might be because the law provides that a sperm donor’s child is his child, but the inclusion of the words:

whether or not the child is biologically the child of the man ‑

suggests that the class is not concerned with sperm donors. 

MR LENEHAN:   Quite.  I was missing your Honour’s point.  That is so and that is a point that we embrace.  It tells against that submission.  Back to my starting point, this is a not a provision that is preoccupied with the position of sperm donors. 

We say, for those reasons, that our friends are wrong to put that if section 60H is, as they say, exclusive or exhaustive then in this case it follows, as the learned Solicitor‑General for the Commonwealth put, there are no parents.  That, of course, is a submission that your Honours would not accept unless there were clear words requiring that conclusion. 

We say – returning to the characterisation of the positive submission that we do put which is that that your Honour Justice Bell adopts – that it is unsurprising that Parliament should have taken that approach – that non‑exhaustive approach – where the default position is the ordinary meaning of “parent” in an area in which an exhaustive approach would be

an inherently treacherous, in my submission, legislative exercise given the nature of scientific innovation.

Finally, insofar as – I am also going to address the point that Mr Walker made this morning, so two points to go. First, insofar as section 109 is concerned, Victoria and Mr Walker overlook the point that was made by Mr Kearney yesterday. That is, there is an anterior question of construction here regarding the State Act. Your Honours will recall that Mr Kearney put the point that the State Act is not directed to identifying when a person is a parent for the purposes of the laws of the Commonwealth, for this reason, as a matter of construction. The general presumption applies that the legislature intends – the NSW legislature – only to regulate matters in and of its own jurisdiction. And, Mr Kearney referred your Honours to section 12(1) of the Interpretation Act and Solomons. 

EDELMAN J:   If that submission were applied, as a general proposition, it would not leave much work for section 79 ever to do unless the State law provided, expressly, that it was to be a law of the type that would be picked up by section 79.

MR LENEHAN: Yes, your Honour, I have to accept that is so. Now, as regards the new point regarding section 109 that was put this morning by Mr Walker, we say that the term “parent” can encompass a sperm donor in certain circumstances, including the circumstances that were found in this case.

We do not say that a sperm donor must be a parent.  In that regard, we say the trial judge was entirely correct – biology is not determinative.  The true inconsistency lies in the fact that the State law says that it cannot encompass the present circumstances.  The inconsistency – to put it technically – is in the attempt by the State law to give the term “parent” a technical meaning which detracts from the ordinary meaning which, for the reasons Mr Kearney gave in‑chief yesterday, is what the Family LawAct adopts.  Those are the submissions we make in reply, your Honours.

KIEFEL CJ:   Thank you, Mr Lenehan.  The Court reserves it decision in this matter and adjourns until 10.50 am.

AT 10:33 AM THE MATTER WAS CONCLUDED