What is the definition of a parent in a Family Law matter

Parent

Who is a ” parent” in a family law matter seems like it should be a simple issue. But with same-sex marriage now legal and artificial conception options becoming more prevalent, the courts have recently had to revisit the definition of a “parent”.

In Masson v Parsons [2019] HCA 21 (19 June 2019) the High Court heard the case of Mr Masson who sought to be recognised as a legal parent of the child his sperm conceived.
Mr Masson entered into an agreement with Ms Parsons to supply sperm for the purposes of conceiving a child. It was believed by Mr Masson that he would be the father of the child, would be named on the birth certificate and enjoy an ongoing role in the child’s life, providing financial, health, education and welfare support for the child.

After the conception of the child Mrs Parsons entered into a same sex de facto relationship with the second respondent in the case and the couple later married. The second respondent sought to be recognised as the legal parent of the child. This was against the wishes of Mr Masson, as he looked forward to having an ongoing relationship with his newly conceived daughter.

The matter was brought before the courts to decide whether Mr Masson would be defined as a parent for the purposes of the Family Law Act.

S 60H of the Family Law Act states that:

  • If a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or in a de facto relationship with another person (the other intended parent), then
  • The child is the child of the woman and the other intended parent; and
  • The child is not the child of the donor of the genetic material.
    In this case the court made the finding that there was no de facto relationship established at the time of the conception of the child and therefor this section did not apply.
    The High Court held that a “parent” under the Family Law Act is a question of fact and degree, determined according to the “ordinary, contemporary understanding of a ‘parent’ and the relevant circumstances of the case at hand”.

In these circumstances Mr Masson had provided his sperm to facilitate the artificial conception of his daughter on the express or implied understanding that he would be the child’s parent, that he would be registered on her birth certificate as her parent (as he is) and that he would, as her parent, support and care for her, as he has done since her birth.

The High Court found that to characterise Mr Masson as a ‘sperm donor’ and not a
parent would be ignoring all but one of the relevant circumstances in this case and as such Mr Masson was allowed to be defined as the legal parent of his daughter.

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