Birth Mother and partner wins appeal against declaration that the sperm donor was a parent of their eldest child.
In Parsons and Anor & Masson  FamCAFC 115 a birth Mother (Susan) while living with her partner (Margaret), had two children (B, 10 and C, 9) conceived through artificial insemination, for which sperm had been donated by the sperm donor Respondent (Robert) for B and by an unknown donor for C.
Robert sees the children (they call him ‘Daddy’) and was registered as a parent on B’s birth certificate while Margaret is on C’s birth certificate.
Section 60H of the Family Law Act deems Margaret to be C’s parent.
At first instance the court declared Robert to be a parent of B, as it was not
satisfied that Susan and Margaret were in a de facto relationship when B was conceived. It was held that Robert was a legal parent of B as he had “provided his genetic material of the express purpose of fathering a child he expected to be a parent.”
The mother’s (Susan’s) application to relocate to New Zealand was dismissed. Susan and Margaret appealed.
Thackray J, with whom Murphy and Aldridge JJ Agreed, did not need to decide whether the finding that the appellants were not in a de facto relationship was in error. As to the finding that Robert was a ‘parent’ of B within the meaning of the Family Law Act 1975, the Full Court agreed with the appellants submission that “her Honour, who was sitting in New South Wales, erred in failing to recognise that s79 of the Judiciary Act 1903 (cth) required her to apply not the Family Law Act but the Status of Children Act 1996 (NSW), the effect of which is that “the respondent is conclusively presumed not to be B’s father.”
Thackray J cited s14 of the state Act which contains four presumptions of parentage arising out of the use of artificial conception procedures, including:
“(2) If a woman..becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.”
The appeal was allowed, the parenting order set aside and the case remitted for re-hearing.
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