Re Mark: An Application Relating to Parental Responsibilities
[2003] FamCA 822
•28 August 2003
[2003] FamCA 822
FAMILY LAW ACT 1975
FAMILY COURT OF AUSTRALIA
AT MELBOURNE
NO. MLF 6910 of 2002
IN THE MATTER OF:
Re Mark: an application relating to parental responsibilities
JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE BROWN
Date of Hearing: 14 November 2002, 3 February 2003
Family Report admitted into evidence: 20 March, 2003
Date of Judgment: 28 August, 2003Appearances: Ms. Johns of counsel instructed by Slater and Gordon, Solicitors, 533 Little Lonsdale St. Melbourne, appeared for the applicants
RE Mark: an application relating to parental responsibilities
MLF 6910 of 2002
Coram: Brown J
Date of hearing: 14 November 2002, 3 February 2003
Date of judgment: 28 August 2003
Catchwords
FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Parentage – Definition of “parent” – Parenting orders – Presumptions of parentage – Overseas orders – Relationship with each parent – Surrogacy – Surrogate agreement – Child born as result of artificial insemination – Child born to surrogate mother – Child has no biological connection to surrogate mother – Child has biological connection to applicant – Child has no biological connection to applicant’s partner – Child born in USA – Child has Australian citizenship – Applicant named on birth certificate – Gay and lesbian families
Legislation considered:
Family Law Act (1975), s.4(1), s.60D, s.60H, s.61C, s.65G, s.68F, s.69R, s.64B, s.70F(a)(i)&(ii), s.70G, Regulation 14
Child Support (Assessment) Act 1987, s.5, s.7
Status of Children Act 1974 (Vic), s.10F
Status of Children Act 1996 (NSW), s.14
Artificial Conception Act 1984 (NSW)
Health Services Act 1988 (Vic), s.141(3)
Infertility Treatment Act 1995(Vic)Caselaw considered:
B v J (1996) FLC 92-716
Collector of Customs v Agfa Gevaert Ltd. (1996) 186 CLR 389
ND v BM [2003] FamCA 469Re Patrick: An application concerning contact (2002) FLC 93-096
Stone v Bowman (unreported, 28 February 2000)
Tobin v Tobin (1999) FLC 92-848
W v G (1996) 20 Fam LR 491.Who should have responsibility for Mark’s care, welfare and development? That is the question at the heart of this application.
2.Mark is one year old. He lives with Mr. X and Mr. Y in Melbourne. Each considers Mark his son and shares his care.
3.Mr. X is 38 and in full time employment. Mr. Y is 41 and engaged in part-time employment and otherwise in homemaking. Mr. X and Mr. Y are gay partners who have lived together since December 1992.
4.Mark was born in the United States of America on 31 May 2002. The woman who gave birth to him is Ms. S, who lives with her husband, Mr. S, in the United States of America.
5.Although Ms. S gave birth to Mark she has no genetic connection with him. She carried an embryo created from a donor egg harvested from an anonymous donor and sperm of Mr. X.
6.Mark was carried by Ms. S pursuant to a surrogate agreement made between Mr. X, Mr. Y, Ms. S and Mr. S on 30 May 2001 in California in the United States of America.
7.Amongst the terms in the surrogate agreement were terms to the following effect :
· The surrogate (the term used in that agreement for Ms. S) will carry an embryo created from a donor egg harvested from an anonymous donor and sperm retrieved from one or both of Mr. X and Mr. Y, the embryo to be transferred to her womb by an IVF physician;
· Neither the surrogate nor Mr. S desire to have any parental relationship, rights or obligations with any child born pursuant to the surrogate agreement and intend any such child to be morally, ethically and legally that of Mr. X and Mr. Y;
· The surrogate and Mr. S relinquish any and all rights with respect to any child born pursuant to the surrogate agreement;
· It is the express intent of all parties that Mr. X and Mr. Y shall be the parents of any child born pursuant to the surrogate agreement and neither the surrogate nor Mr. S will be the legal, natural or biological parent of such child;
· The surrogate and Mr. S consent to any legal process necessary to establish the parental rights of Mr. X and Mr. Y.
8.The surrogate agreement included additional terms relating to matters such as the custody of any child upon the death of an intended parent, medical and psychological evaluation, medical treatment in a range of circumstances, payment to the surrogate and surrender of the child upon delivery.
9.The surrogate agreement is a legal and enforceable agreement under the law of California.
10.On 11 September 2001 Ms. S was implanted with an embryo at a clinic in California, the embryo created from a donor egg and Mr. X’s sperm.
11.Mr. X and Mr. Y were present at Mark’s birth on 31 May 2002. Mr. X’s mother and Mr. Y’s sister-in-law were also at the hospital. Mark was given into the care of Mr. X and Mr. Y, who both stayed in a room at the hospital for three days after his birth. On 10 June 2002 they returned, with Mark, to Australia. He has lived with them ever since.
12.Pursuant to a petition filed in a USA State court, an order (“the USA order”) was made on 31 May 2002, after evidence was adduced relating to the circumstances of Mark’s conception and birth. The court ordered, adjudged and declared:
· That Mr. X be determined the biological father of Mark and that Mr. S is not the father of the said child; and
· that Mr. X be designated in all public records as the biological father of Mark and that birth hospital is further ordered to reflect Mr. X as the biological father on the said child’s birth certificate.
13.Pursuant to that order the birth certificate that was issued on 3 June 2002 names Mr. X as Mark’s father and Ms. S as his mother.
14.On 10 June 2002 Mr. X and Mr. Y returned with Mark to their home in Melbourne. On 27 June 2002 Mark was registered as an Australian citizen.
15.On 11 November 2002 Mr. X and Mr. Y filed a form 3 application seeking orders that they have joint responsibility for the long-term care, welfare and development of Mark, that he live with them and they be jointly responsible for his day to day care, welfare and development and that he have contact as agreed with Ms. S from time to time.
16.On 14 November 2002 I made orders for service of the application and supporting affidavits upon Ms. and Mr. S, and for the filing of written submissions. Orders provided that if Ms. and/or Mr. S sought to be joined as a respondent she and/or he file a response by 14 December 2002, or 14 days after service, whichever was later.
17.Written submissions were filed by the applicants on 20 December, 2002.
18.An affidavit of service sworn by Ms. Judith Small on 28 January 2003 and evidence given on 3 February 2003 satisfied me that service had been effected on Ms. and Mr. S and that they had elected (and so advised Mr. X and Mr. Y) to take no part in these proceedings. It is true that a contrary course may have exposed them to legal proceedings for breach of the surrogate agreement but that is not a matter to which this court can have regard.
19.I heard further argument on 3 February, 2003. On that day I directed the preparation of a report by a court counsellor directed to the nature and quality of the relationship between each of the parties and Mark. A report prepared by Ms. Eve Tauber is in evidence.
20.There is thus no contradictor of submissions advanced on behalf of the applicants. They are the only parties. As both join in the application, orders made in the terms sought would be orders made by consent of all parties. The orders they seek are parenting orders.
21.Section 65C of the Family Law Act 1975 provides that either or both of the child’s parents, the child, him or herself, a grandparent of a child, or any other person concerned with the care, welfare and development of the child may apply for a parenting order.
22.It is clear that Mr. X and Mr. Y are both people concerned with the care, welfare and development of Mark and, thus, each has status to bring the application. If neither is a parent for the purpose of the Family Law Act, the provisions of s.65G of the Family Law Act apply. If one is a parent, those provisions are not invoked.
23.I sought submissions on whether Mr. X (amongst others) was a parent for the purposes of the Family Law Act. There is no definition of ‘parent’ in the Family Law Act, save with respect to adopted children, which is not relevant.
24.The Family Law Act contains a number of provisions which provide a potential pathway to a clear finding that Mr. X is Mark’s father. However, further analysis demonstrates that each pathway is blocked.
25.An example is s.69R of the Family Law Act, which creates a presumption of parentage arising from registration of birth. That section states:
“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 the parent of the child.”
26.A definition of ‘prescribed overseas jurisdiction’ is found in s.4(1) of the Family Law Act. It provides that a prescribed overseas jurisdiction is any country, or part of a country, outside Australia that is declared by the regulations to be a prescribed overseas jurisdiction for the purposes of the provision in which the expression is used.
27.Regulation 14 is as follows:
REGULATION 14 MEANING OF PRESCRIBED OVERSEAS JURISDICTION
14For the purposes of the definition of prescribed overseas jurisdiction in subsection 4(1) of the Act:
(a)each country or part of a country, set out in column 2 of an item in Schedule 1A is declared to be a prescribed overseas jurisdiction for the purposes of:
(i)section 70F of the Act, in relation to the definition of overseas child order, and
(ii)sections 70M and 70N of the Act; and
(b)each country, or part of a country, set out in Schedule 2 as a reciprocating jurisdiction is declared to be a prescribed overseas jurisdiction for the purposes of:
(i)subsection 4(1) of the Act, in relation to the definition of overseas maintenance agreement; and
(ii)paragraph 89(b) of the Act.
28.Regulation 14 does not declare any country or part of a country to be a prescribed jurisdiction for the purposes of s.69R. The designation of Mr. X as Mark’s father in all public records (pursuant to the USA order) and Mark’s birth certificate thus give rise to no presumption of parentage.
29.Other statutory provisions are, likewise, blind alleys. I will refer in more detail to the provisions of s.60H(3) later.
30.The applicants did not seek to register the USA order pursuant to the provisions of Division 13 of Part V11 of the Family Law Act, that Division providing, amongst other things, for the registration of overseas orders dealing with children.
31.Section 70G provides that the regulations may make provisions for and in relation to the registration in courts in Australia of overseas child orders, other than excluded orders. Once registered, an overseas child order has the same force and effect as if it were an order made by the court in which it is registered.
32.Although no application had been made to register the USA order, counsel for the applicants submitted that the USA order fitted the definition of overseas child order contained in s.70F(a). The relevant state of America is a prescribed overseas jurisdiction for the purposes of s.70F in relation to the definition of overseas child order, however the definition of overseas child order further limits the categories of orders which fall within the definition.
33.Counsel for the applicants made an ingenious submission based on a chapter of the relevant USA State Code, but I cannot find the order has the effect required by s.70F(a)(i) or (ii).
34.In Re Patrick: An application concerning contact (2002) FLC 93-096 Guest J considered whether a known sperm donor was a parent under the Family Law Act. In that case, a child (Patrick) was born after the father entered into an agreement with the mother and her lesbian partner to provide genetic material for the purposes of artificially inseminating the mother. The father subsequently sought contact with Patrick. After reviewing the authorities and a number of journal articles, Guest J concluded that the father was not a parent for the purposes of the Family Law Act, but as a person concerned with Patrick’s care, welfare and development could apply for a parenting order pursuant to the provisions of s.65C of the Act, and have parental responsibilities conferred upon him.
35.I have a number of reservations about the analysis by Guest J which resulted in a finding that Patrick’s biological father was not a parent for the purposes of the Family Law Act. The first relates to consideration of s.60H of the Family Law Act. At page 88,921 his Honour considered the effect of s.60H and, in particular, s.60H(3). He described its effect in these terms:
291. The effect of s 60H(3) of the Act is that where under a prescribed law of a State or Territory the child is a child of a man, the child is also to be regarded as his child under the Family Law Act . Thus a child is to be regarded as the child of the biological father and the biological father a ''parent'' only if there is a specific State or Territory law which expressly confers that status on a semen donor for the purposes of the Family Law Act . However, there are no prescribed laws in any State or Territory to that effect. See Schedule 6 and Schedule 7 of the Family Law Regulations . Since no prescribed laws exist under s 60H(3) of the Act, Fogarty J held that B was not a ''parent'' of the children for the purposes of the Assessment Act.
36.I do not share Guest J’s view that, for the purposes of the Family Law Act, s.60H defines ‘parent’, or means that a biological father in the position of Patrick’s father or Mr. X is only a parent if there is a specific State or Territory law which expressly confers that status on a semen donor in his position, and that law is prescribed for the purposes of s.60H.
37.Section 60H creates the relationship of parent and child, not by the use of the term ‘parent’, but by deeming a child to be “her child”, “his child” or “their child” for the purposes of the Family Law Act in certain circumstances.
38.The relevant parts of s.60H are as follows:
SECTION 60H CHILDREN BORN AS A RESULT OF ARTIFICIAL CONCEPTION PROCEDURES
60H(1) [Where child is a child of woman and man whether biologically child or not]
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 a man; and
(b) either of the following paragraphs apply:
(i) the procedure was carried out with their consent;
(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 man;
then, whether or not the child is biologically a child of the woman and of the man, the child is their child for the purposes of this Act.
60H(2) [Where child is a child of woman whether biologically child or not]
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.
60H(3) [Where child is a child of man whether biologically child or not]
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.
39.The section does not contain the word ‘parent’. If the provisions of s.60H(3) apply the child will be considered the child of a man (whether biologically his child or not) as provided in the prescribed law of the Commonwealth or of a State or Territory. It does not just apply to the biological parent of a child born as a result of artificial conception procedures. Section 60H deems certain children born as a result of an artificial conception procedure to be (for the purpose of the Family Law Act) a child of a man and/or woman who is (presumably) the child’s social parent but may not, in fact, be biologically related to the child.
40.To the extent that s.60H could be said to define ‘parent’ for the purposes of the Family Law Act I am not satisfied it is an exhaustive definition. To use the language of Fogarty J in B v J (1996) FLC 92-716, its provisions enlarge, rather than restrict, the categories of people who may be regarded as the child’s parent.
41.In B v J Fogarty J held that a known sperm donor who had provided semen to the respondent and her lesbian partner for insemination into the respondent, was not a parent as defined by s.5 of the Child Support (Assessment) Act 1987 (“the Assessment Act”). That section provides that :
“ ‘parent’ means :
. . .(b)when used in relation to a child born because of the carrying out of artificial conception procedure – a person who is a parent of the child under s.60H of the Family Law Act1975.”
42.His Honour held that the effect of the use of the word “means” in the definition of ‘parent’ in that section was to provide an exhaustive definition within the context of the circumstances referred to. Thus, 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. As there were no prescribed laws under s.60H(3) the applicant could not be a parent under that section.
43.His Honour went on to consider (at 83,619) whether a person such as the applicant would be a parent within Part VII of the Family Law Act, including in relation to Stage 1 child support applications. He noted that the definition in the Assessment Act uses the word “means”, but in the absence of such a specific provision in the Family Law Act it was not clear that the provisions of s.60H did not enlarge, rather than restrict, the categories of persons who are regarded as a child’s parents.
44.At 83,621 Fogarty J pointed to an anomaly which would exist were s.60H to define ‘parent’ for the purposes of Part VII of the Family Law Act as necessarily synonymous with the definition in s.5 of the Assessment Act.
45.Fogarty J noted that the logic which required a finding that the biological father in the case before him was not a parent, applied equally to the biological mother. As no relevant Victorian law was prescribed pursuant to s.60H(2), for the purposes of the Assessment Act she could not be the mother of the child. At 83,621 his Honour wrote :
“This would not itself preclude a mother of a child born as a result of an artificial conception procedure from applying for Stage 2 child support, because such applications may be made by ‘eligible carer(s)’ of the child and not only parents (s 25 Assessment Act). However, it would preclude the pursuit of a Stage 2 application seeking child support from her. If, in this case, on the break-up of the mother’s relationship, the children had remained in the care of the mother’s partner, the partner (here female – but equally if a male partner) would have been unable to seek Stage 2 support from the children’s own biological and birth mother who had cared for them to that point. However, the partner may have been able to seek Stage 1 child support on the basis that s 60H does not itself narrow the categories of parents.
Further, the recognition of this anomaly strengthens the view that s 60H is not an exclusive category. Were it so, the children’s mother would not be their ‘parent’ for any of the purposes of Part VII. That would be a clearly absurd and, presumably, unintended result.”
46.If Guest J’s analysis in Re Patrick is correct, a birth and biological mother in the position of Patrick’s mother may not be his parent for Family Law Act purposes, as no relevant Victorian law has been prescribed pursuant to s.60H(2); the question would be whether the exhaustive definition in s.60H(2) displaced the presumption of parentage arising from the child’s birth certificate.
47.In Re Patrick Guest J referred (at 88,922) to s.7 of the Assessment Act which provides that:
“Unless the contrary intention appears expressions used in this Act and in Part VII of the Family Law Act 1975 are to have the same respective meaning as in that Part.”
He found that a reading of the legislation failed to reveal any contrary intention.
48.Another view is that the omission of a definition, or any limiting expression such as “means”, in the Family Law Act itself reveals a contrary intention. Prima facie s.60H is not exhaustive. Section 60H(3) does not say a child is a child of a man for purposes of the Act only if its provisions are satisfied. I am not satisfied it excludes Mr. X from being found to be a parent of Mark.
49.A similar conclusion (that s.60H enlarges rather than restricts the categories of people who may be regarded as parents) was reached by Faulks J in Stone v. Bowman (unreported, 28 February, 2000) when he considered whether a man who provided sperm for the purpose of artificially inseminating a woman who was in a continuing lesbian relationship was the parent of the child she bore. His Honour referred to a number of definitions of the word parent, and considered the effect of s.60H. At paragraph (16) his Honour said (of s.60H):
“It is principally, if not exclusively, an extending definition of child to include people who would not otherwise be included as parents. It is noticeable that contrary to the provisions of the various State acts relating to this matter, there is no provision which would provide a presumption, rebuttable or otherwise, that the person supplying the semen in this case, or the egg in an appropriate case, is not the relevant parent.”
50.A second reservation relates to the relevance and effect of the decision of the Full Court in Tobin v Tobin (1999) FLC 92-848. In Re Patrick, at 88,923, Guest J adverted to the fact that the reasoning advanced in Tobin would suggest that the father in the case before him (as the biological parent of Patrick) was a parent for the purposes of the Family Law Act. He distinguished the case on the basis that:
…the unique position of a sperm donor was not before the Court (in Tobin) and for this reasons it is of limited application”.
51. I do not find it can so easily be distinguished.
52. In Tobin the Full Court considered the meaning of the word ‘parent’ in the context of an application for child maintenance pursuant to Division 7 of Part VII of the Family Law Act.
53. In the absence of a definition, the Full Court found (at 85,939) that the natural meaning of the word ‘parent’ in the context in Part VII, Division 7 is the biological mother or father of the child. The Full Court considered a number of dictionary definitions of ‘parent’ and (at 85,938) found the natural meaning of the word in respect of the Family Law Act to be the first definition given in the Oxford English Dictionary, being “a person who has begotten or borne a child”.
54.The effect of that finding, and adoption of the reasoning of Fogarty J in B v J, achieved consistency between provisions of the Assessment Act and the Family Law Act on the question of a particular person’s liability to pay, variously, child support or child maintenance. However, it is hard to see how, in the absence of a division or section specific definition in the Family Law Act, the word ‘parent’ can be defined to mean one thing in the context of Part VII, Division 7 (Child maintenance orders) and another in Part VII, Division 5 (Parenting orders – what they are) and Division 6 (Parenting orders other than child maintenance orders).
55.The question, then, is whether a finding that s.60H(3) does not operate to exclude Mr. X from coming within the meaning of ‘parent’ in Part VII, coupled with the Full Court’s analysis in Tobin, must result in a finding that the ordinary meaning of the word ‘parent’ should be applied, and Mr. X found to be a parent, notwithstanding the potential ramifications on sperm donors (known or unknown) who gave genetic material for use in artificial conception procedures secure in the belief that State and Territory laws precluded them from incurring any liabilities or having any rights in relation to children born as a result of those artificial conception procedures.
56.If s.60H(3) does not provide an exhaustive definition of parent for a child conceived by artificial conception procedures, how should ‘parent’ be defined? In the absence of a definition, the question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. Statutory language must also be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances; see Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389.
57.The word ‘parent’ is used dozens of times in the Family Law Act. It was open to Parliament to define it, either generally, in s.4, or for the purpose of specific provisions of the Family Law Act, as it defines ‘member of the family’ and ‘relative’ in s.60D(2) and s.60D(3).
58.The Oxford English Dictionary (2nd. Ed.) does not define “begotten”, referring the reader to “beget”, which is defined as follows :
“1. trans. To get, to acquire (usually by effort).
2.To procreate, to generate: usually said of the father, but sometimes of both parents.
3.Theol. Applied to the relationship of the Father to the Son in the Trinity; also to the spiritual relationship of God to man in regeneration.
4.fig. and transf. To call into being, give rise to; to produce, occasion.”
59.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. The fact the ovum was fertilised by a medical procedure, as opposed to fertilisation in utero through sexual intercourse, is irrelevant to either his parental role or the genetic make-up of Mark.
60.I am satisfied that the ordinary meaning of the word ‘parent’ encompasses a person in Mr. X’s position. If it were otherwise there would be no need for legislation such as that contained in the Status of Children Act 1974 (Vic).
61.Support for the proposition that, absent an exhaustive definition, ‘parent’ should be given its ordinary meaning is found in the decision of Kay J in ND v BM (unreported, 23 May 2003) in which his Honour considered the meaning of ‘parent’ in the context of an application for child support brought against a man who volunteered to act as a sperm donor for a woman who was in a lesbian relationship and where conception took place “via vaginal intercourse”. His Honour held that the resulting child was not born as a result of an artificial conception procedure, notwithstanding the fact the parties had agreed that the man’s role was that of a sperm donor, and that he was not to have any rights or liabilities in respect of the child. A Victorian magistrate declared the mother to be a person entitled to administrative assessment of child support payable by the biological father. He appealed to the Family Court of Australia.
62.At para. 14 his Honour wrote:
“14. The only definition of a parent in the Child Support (Assessment) Act is set out in s 5 and reads as follows:
“‘Parent’ means:
(a) when used in relation to a child who has been adopted, 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, a person who is a parent of the child under section 60H of the Family Law Act 1975.”
15. Even though there is no definition beyond that contained in s 5, the cases conclude that the definition in s 5 is an expansive definition and not an inclusive definition and that the normal meaning of the word "parent" in the English language has to be also imported into the Child Support (Assessment) Act in context where it is used.
16. I refer to the decision of the Full Court in Tobin v Tobin (1999) FLC 92‑848 where the Court, when discussing the obligations of a step-parent to pay child support held that a “parent” is the father or mother of the child or the progenitor of a child.”
63.A third reservation relates to the finding by Guest J that provisions in the Family Law Act should be read in the light of State and Territory legislation dealing with the position of donors of semen for artificial insemination procedures. In Re Patrick Guest J set out (at 88,892) the circumstances in which the State and Territory legislation was drawn, as follows :
“. . . This situation stems from the decision of the Standing Committee of Commonwealth and State Attorneys-General in July 1980 (and reaffirmed in 1981, 1982 and 1983) that uniform legislation on the status of children born as a result of artificial insemination by donor should be enacted in all Australian jurisdictions, and contain the following provisions :
“a husband who consents to his wife being artificially inseminated with donor sperm shall be deemed to be the father of any child born as a result of the insemination;
the sperm donor shall have no rights or liabilities in respect of the use of the semen; and
any child born as a result of AID (artificial insemination by donor) shall have no rights of (sic) liabilities in respect of the sperm donor.”
294. As a result of this direction each State and Territory enacted identical (for relevant purposes) legislation designed to provide that a semen donor would not incur liability nor attain any rights in respect of a child born as a result of an artificial insemination procedure.”
64.Guest J then adverted to an article by Danny Sandor, “Children Born from Sperm Donation: Financial Support and Other Responsibilities in the Context of Discrimination” (1997) 4(1) Australian Journal of Human Rights 175, in which Sandor noted that Fogarty J’s conclusion in B v J (that it did not necessarily follow that because someone was not a parent under the Assessment Act he was not a parent under the Family Law Act) :
“. . . appears a curious result given that all states and territories have laws which presume that a sperm donor is not a parent unless he is the legal or de facto husband of the recipient.”
65.Having considered some of the consequences of a finding that a person in the position of Patrick’s father was a parent for the purposes of the relevant Family Law Act provisions, Guest J continued (at 88,923) :
“301. Contrary to Fogarty J’s arguments, Sandor argues, with which I agree, that in the absence of express provisions in federal law, the Family Law Act can and should be read in light of such state and territory presumptions, thereby leaving the sperm donor, known or unknown, outside the meaning of ‘parent’.”
66.Sandor’s observations about State and Territory presumptions followed immediately on the passage quoted in para. 64 above. He wrote :
“It would therefore seem that the judge (Fogarty J) was pointing to the absence of equivalent provisions in the Family Law Act or other federal law act, and was suggesting, without deciding the issue, that state or territory presumptions would not apply in Family Law Act matters.”
67.Sandor did not go on to expressly argue that, as a matter of statutory construction, provisions in federal law should be read in light of State and Territory presumptions. He wrote from a policy position, pointing out some of the implications for sperm donors were they to be held to be parents for the purposes of the Family Law Act, and raising potentially opposing arguments.
68.It follows from Guest J’s finding (quoted in para. 65 of this judgment) that he read the word ‘parent’ in the Family Law Act “in light of” certain State and Territory presumptions.
69.The various statutes enacted by the States and Territories which have put into effect the decision of the Standing Committee of Commonwealth and State Attorneys-General may have a common intent, but the intention is now effected in different ways. Some do so by the creation of presumptions of parentage; see for example, Status of Children Act 1996 (NSW), s.14. Others (including Victoria) do not. In the passage quoted at para. 64 above Sandor refers to all States and Territories having laws which “presume that a sperm donor is not a parent” unless he is the legal or de-facto husband of the recipient but the Victorian legislation is not couched in those terms.
70.The relevant Victorian provision, referred to by Guest J in Re Patrick at 88,921, is s.10F of the Status of Children Act 1974. It provides :
“(1) Where semen is used in a procedure of artificial insemination of a woman who is not a married woman or of a married woman otherwise than in accordance with the consent of her husband, the man who produced the semen has no rights and incurs no liabilities in respect of a child born as a result of a pregnancy occurring by reason of the use of that semen unless, at any time, he becomes the husband of the mother of the child.
(2) For the purposes of sub-section (1), the rights and liabilities of a man who becomes the husband of the mother of a child so born are the rights and liabilities of a father of a child but, in the absence of agreement to the contrary, do not include liabilities incurred before the man becomes the husband of the mother.”
71.Those provisions create no presumptions, rebuttable or otherwise. Section 10F does not say that in certain circumstances a person is presumed to have no rights and liabilities in respect of a child. Rather, it provides that a person in a particular position has no rights and incurs no liabilities in respect of a child. It is a statement of the law as it applies in particular circumstances. Nor does it say (to use Sandor’s language) that a sperm donor is not a parent unless he is the legal or de-facto husband of the recipient. The Victorian statute merely removes the rights and obligations which the law attaches to fatherhood.
72.A presumption involves the assumption of truth of a thing until the contrary is proved or an inference established by law as applicable to certain circumstances. The language of the Victorian legislation is not the language of presumptions.
73.A finding that a word in Part VII of the Family Law Act (in this case 'parent') is to be construed “in light of” s.10F of the Status of Children Act 1974 (Vic) involves construing a federal statute “in light of” State law.
74.Save for the reference to Sandor’s argument, no authority was advanced in Re Patrick to support the view that, in the absence of express provisions in federal law, the Family Law Act can and should be read in light of State and Territory presumptions. Sandor’s argument is as follows :
“A contrary argument to his Honour’s tentative views (Fogarty J’s comments that the word ‘parent’ could be construed differently under the Family Law Act than under the Child Support Assessment Act) would be that in the absence of express provisions in federal law, the Family Law Act can and should such (sic) be read in light of such state and territory presumptions, thereby leaving the sperm donor outside the meaning of ‘parent’.”
75.Sandor’s footnote to that paragraph refers to W v G (1996) 20 Fam LR 49 at 62-65.
76.W v G concerned an application by a plaintiff, who had been involved in a lesbian relationship with the defendant, for lump sum maintenance for children conceived as a result of an artificial insemination procedure when the parties were together, and an application for property interest by way of constructive trust. Amongst other defences the defendant sought to answer the claim for child maintenance by relying on the primary liability of the sperm donor as biological father to support the children.
77.In the course of his judgment Hodgson J considered the provisions of then s.60B of the Family Law Act, the precursor to s.60H. He noted that there was no prescribed law of the State of New South Wales in relation to s.60B(2) or s.60B(3) (which were in identical terms to s.60H(2) and s.60H(3) ) and found that, accordingly, that section had no application to the case before him. He held that s.6 of the Artificial Conception Act 1984 (NSW) had the effect of taking away from a child the benefit of a right to support from the biological father, without substituting a right to support from some other person. He held (for the same reasons found by Fogarty J in B v J) that s.5 of the Assessment Act meant that the only person who could satisfy the definition of ‘parent’ (so far as NSW was concerned) was – if the child was born as a result of an artificial conception procedure – a person or persons who came within s.60B (now s.60H) of the Family Law Act.
78.Nowhere in the part of the judgment cited (or elsewhere) does Hodgson J say or imply that there is any principle of statutory construction which means a federal law should be construed in the light of State or Territory presumptions. If such a principle exists one wonders at its effect in areas where State and Territory laws differ.
79.In the face of Mark’s genetic make-up and a birth certificate naming Mr. X as his father, a finding that Mr. X is not Mark’s parent for the purposes of the Family Law Act sits awkwardly with the realities of Mark’s life. In daily life a birth certificate is often the principal document used to establish the parental relationship; illustrations of that include enrolling a child at school or making an application for a passport. A finding that Mr. X is not a parent for the purpose of the Family Law Act would mean that in life Mr. X is Mark’s father, but in federal law he is not his parent. However anomalous that might be, if such is the effect of the law that finding must be made.
80.If Mr. X is not Mark’s parent, who is or are? Ms. S is named as Mark’s mother on his birth certificate but, as with Mr. X, the failure to prescribe any overseas jurisdictions for the purposes of s.69R means that the presumption does not operate in her favour. She bore the child, so is within the definition adopted in Tobin, but is not his biological mother. On their face the provisions of s.60H(1)(a) and (b)(i) are satisfied; if they apply Mark is the child of Mr. and Ms. S for the purposes of the Family Law Act. When considering parental responsibility s.61C(3) requires s.61C(1) to be read subject to any order of a court for the time being in force, whether or not made under the Family Law Act. The USA order expressly provides that Mr. S is not the father of Mark. No submissions were directed to the effect the USA order would have (if any) on the allocation of parental responsibility in s.61C, in the event s.60H(1) results in Mark being the child of Mr. S for the purposes of the Act, but it is unlikely the USA order would operate to qualify the parental responsibility conferred by s.61C(1).
81.Having regard to the provisions of the Family Law Act and authorities cited, it may well be that Mr. X is Mark’s parent for the purposes of the Family Law Act. The fact that construction, if followed, might lead to the imposition of responsibilities or entitlements on a class or classes of people who previously considered themselves immune from such responsibilities or entitlements would not be a reason for a trial judge to come to an otherwise logical conclusion. However, I am mindful of the fact there is no respondent or contradictor in this case. In an area as legally and socially complex as this there may well be other arguments which should be put. In these circumstances I do not make that positive finding.
82.The rights and responsibilities (or lack of them) which arise from particular artificial conception procedures are a matter for legislatures. The anonymity of so called anonymous sperm donors has already been breached; see, for example, Health Services Act 1988 (Vic) s.141(3). It is for the legislature to determine whether amendments are necessary to protect them or others from the consequences of being found a parent for the purpose of provisions in the Family Law Act, or elsewhere. In Re Patrick Guest J made a number of recommendations for legislative reform to accommodate the diversity of family structures and modes of conception. It would be useful for those recommendations to be considered, and the anomalies, inconsistencies and uncertainties which bedevil this area removed.
83.Whether or not he is Mark’s parent for the purposes of Part VII of the Family Law Act, I am satisfied Mr. X is a person concerned with Mark’s care, welfare and development. He is his biological father and has shared the responsibilities which routinely fall upon parents since Mark’s birth. Likewise, I am satisfied Mr. Y is a person concerned with Mark’s care, welfare and development. Since Mark’s birth he has shared his care with Mr. X, and shared the other responsibilities referred to. There is thus no question that each of the applicants has the status to make this application.
84.Section 60B(1) of the Family Law Act makes it clear that the object of the part of the Family Law Act relating to children is to ensure that children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
85.The principles underlying that object are set out in s.60B(2).
86.In deciding whether to make a particular parenting order, the court must regard Mark’s best interests as the paramount, but not sole, consideration. In determining what is in his best interests, it must consider the matters set out in s.68F(2). Those provisions require the court to consider not only the child’s relationship with parents, but with other people. Thus, s.68F(2)(b) requires the court to consider the nature of the relationship with each of the child’s parents and with other persons, sub-section (c) requires the court to consider the likely effect of any change in the child’s circumstances, including separation from either parent or any other person with whom the child has been living, and sub-section (e) requires the court to consider the capacity of each parent or any other person to provide for the needs of the child, including emotional and intellectual needs.
87.Further, when the application is made by a person or persons “concerned with the care, welfare and development of the child”, s.68F(2) must be read as referring to that person or persons, in lieu of “parent”, where appropriate. To do otherwise would mean that in determining where a child’s best interest lie, in circumstances where an applicant was not a parent (for example, if an applicant were a relative of a deceased parent) the Court need not look at the provisions of s.68F(2) (d) or (h) as they apply to that person.
88.Section 65G of the Family Law Act applies when the court proposes to make a residence order or specific issues order under which a person will be responsible for a child’s long-term day to day care, welfare and development and that order is to be made otherwise than in favour of a parent, or of persons who include a parent, of the child concerned and with the consent of all the parties to the proceedings.
89.If Mr. X is not Mark’s parent, this section would apply. I have considered the report of Ms. Tauber, and place weight on it. I am satisfied (as her report makes clear) the parties discussed the matter to be determined (their application for parenting orders) with her.
90.Mr. X and Mr. Y are raising Mark together. Each is involved in all aspects of Mark’s care. As Mr. X is in full-time employment and Mr. Y in part-time employment, Mr. Y is involved in more of the day to day care, as is frequently the case when one parent is engaged in paid work for more of the time.
91.The evidence supports a finding that Mr. X and Mr. Y each has an excellent relationship with Mark and that he is strongly attached to both. Ms. Tauber reported that Mark is a healthy, happy, alert and responsive baby, with a beautiful broad smile, who is functioning well within normal physical and social parameters. He related happily and affectionately with both men; Ms. Tauber could observe no difference in his responses to them. Both demonstrated a keen appreciation of parenting responsibilities.
92.Ms. Tauber assessed the relationship between Mark and each of the men to be loving, warm and secure. She found them to undertake parental responsibilities with love, care, diligence, intelligence and humour. They demonstrated a commitment to sharing their parental roles, as well as an understanding of Mark’s needs and the complex issues relating to his birth. Ms. Tauber concluded:
“The reporter therefore as no hesitation in recommending that the parents’ (sic) application for parenting orders be accepted”.
93.This is not a case where orders will result in separating Mark from either of the people with whom he has been living. He will remain living with them both.
94.He was separated from the woman named as his mother on his birth certificate (with whom he shares no genetic material) at birth and she has elected to play no part in these proceedings. It is the Family Law Act which governs this case, not the provisions of the surrogate agreement. The fact that such an agreement would be illegal in Victoria, by virtue of the provisions of the Infertility Treatment Act 1995 (Vic), is not a relevant consideration.
95.Mr. X is Mark’s biological father and the person named as his father on his birth certificate. The parenting orders which he joins in seeking are orders for parental responsibility to be shared by him and Mr. Y. Section 61B of the Family Law Act provides that, for the purposes of Part VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. An issue for the Court is whether Mark’s best interests require that parental responsibility to be so shared, or whether those interests would be met by placing it in the hands of his biological father alone.
96.I am confident that Mr. Y’s response to Mark and his relationship with him is not dependent on a residence or specific issues order being made in his favour, in the sense that he will continue to love him, care for him and treat him as his son regardless of the eventual order. It is his heartfelt desire that his status be recognised in the parenting orders made, but there is nothing to suggest he sees the relationship as conditional upon that recognition. The question is whether Mark’s best interests will be advanced by a legal recognition of his role in Mark’s life.
97.Mark’s physical, emotional and intellectual needs are being met by both men and I am satisfied both have the capacity to continue to meet them. They operate within a circle of extended family and friends and daily demonstrate their commitment to and understanding of the responsibilities of parenthood.
98.I am satisfied that Mark’s best interests will be fostered if orders provide for Mr. X and Mr. Y to be responsible for his long-term and day to day care, welfare and development. The nature of their respective relationships with him, individually and together, and their commitment to him, support the making of such an order, as do more pragmatic concerns.
99.By pragmatic I do not mean some of the factors referred to by counsel, such as the convenience of legal status when collecting a child from kindergarten or school, or taking a child to the doctor. In many families those activities are undertaken by people who are not parents (e.g. a new spouse or partner, relative, friend or employee) and arrangements can be made to accommodate that.
100.It is to be hoped that Mr. X and Mr. Y live to see Mark grow into adulthood. However, the potential for that not to occur must be acknowledged. Were Mr. X to die or become incapacitated whilst Mark is a child in circumstances where Mr. X had (at law) sole parenting responsibility, Mark would be in a legal vacuum. This Court has an opportunity now to assess Mr. Y’s relationship with Mark, his role in his life, and his capacity to foster Mark’s best interests in the short and long term.
101.I am satisfied it is in Mark’s best interests for significant decisions relating to his welfare (for example, those relating to health, education and religion) to be made by both of the people who treat him as their son, and that he can only benefit from their informed involvement in all aspects of his life
102.The applicants sought an order that Mark have contact as agreed with Ms. S from time to time. An order in those terms is a parenting order, as defined in s.64B of the Family Law Act. Ms. S was not a respondent to the initiating application and did not seek to be joined or heard in respect of that proposed order.
103.A contact order is an order dealing with the contact between a child and another person or persons (s.64B(4)), and is not limited to contact between a child and a parent. Pursuant to s.60H(1) Mark is the child of Ms. S and the provisions of s.61C(1) mean that, in the absence of a court order, she has parental responsibility for Mark, as may Mr. S. I have earlier referred to the definition of parental responsibility in s.61B, and the question of the effect of the USA order (if any) on the responsibility conferred by s.61C(1).
104.Orders will provide for Mr. X and Mr. Y to have parental responsibility for Mark and for Mark to live with them. It will be for them to determine who has contact with Mark, including Ms. S. They need no order to do that. However, there is one good reason to make the order sought. It will make clear that the broad parental responsibility vested in Ms. S at Mark’s birth (pursuant to s.61C(1)) no longer exists. That responsibility now rests with the applicants. A contact order makes clear the limits of her role in Mark’s life.
105.It was open to the applicants to seek an order or declaration in respect of Mr. S. They did not do so. To avoid doubt, I make it clear that, henceforce, parental responsibility for Mark vests in Mr. X and Mr. Y. They alone have the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
I certify that the preceding
105 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown.Dated the 28th day of August of 2003
…………………………………………
Associate.
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