Parsons & Anor and Masson

FAMILY COURT OF AUSTRALIA

PARSONS AND ANOR & MASSON [2018] FamCAFC 115  

FAMILY LAW – APPEAL – CHILDREN – Relocation – Two children born as a result of artificial conception procedures – Where the first appellant is the biological and birth mother of both children, the second appellant is a parent of the youngest child by operation of s 60H of the Family Law Act 1975 (Cth) (“the federal Act”) and the respondent is the biological father of the eldest child – Where the primary judge found the respondent is a “legal parent” of the eldest child, allowed him extensive time with both children and restrained the appellants from relocating – Where the primary judge only applied the federal Act – In a case heard in federal jurisdiction it is mandatory for s 79 of the Judiciary Act 1903 (Cth) to be applied – Rizeq v Western Australia (2017) 91 ALJR 707 and Northern Territory of Australia vGPAO (1999) 196 CLR 553 considered – No constitutional reason why s 79 of the Judiciary Act 1903 (Cth) ought not apply to “pick up” the Status of Children Act 1996 (NSW) (“the State Act”) – Held s 60H of the federal Act does not “otherwise provide” within the meaning of s 79 of the Judiciary Act – Section 14 of the State Act must therefore be applied – The respondent is presumed not to be the father of the eldest child – Section 60H of the federal Act does not enlarge the category of persons entitled to the status of “parent” as there can only be two parents for the purposes of the federal Act – Held primary judge erred in finding the respondent is a “legal parent” of the eldest child – Appeal allowed – Matter remitted – Costs certificates issued.

FAMILY LAW – APPEAL – CHILDREN – Interpretation of the federal Act in relation to the meaning of “parent” considered – Where the rebuttable Division 12 presumptions are trumped by s 60H of the federal Act – Bernieres & Dhopal (2017) FLC 93‑793 considered – Biology alone does not determine who is a “parent” for the purposes of the federal Act – State of knowledge of the putative father about the nature of the mother’s relationship with another person irrelevant in the application of s 60H – The intention of a person to “parent” a child does not make them a “parent” within the meaning of the federal Act – Donnell & Dovey (2010) FLC 93-428 and Tobin v Tobin (1999) FLC 92-848 considered – First instances decisions considered – Re Mark: An Application Relating to Parental Responsibilities (2003) FLC 93‑173 no longer to be regarded as good law – If state legislation lays down a presumption that members of a class of men are not to be regarded as fathers of a specific class of children, then a court is obliged to apply that presumption unless it is repugnant to the federal Act – Re Patrick:…