In Masson v Parsons & Ors  HCA 21 (19 June 2019), the High Court of Australia has allowed an appeal from a judgment of the Full Court of the Family Court of Australia concerning parenting orders made under Part VII of the Family Law Act 1975 (Cth) ("the Federal Act"). The case, among other matters, raised issues as to the federal application of a state Act determining the status of children and also issues relating to the meaning of "parent" and whether the ordinary meaning of "parent" excludes "sperm donor".
The Respondent mothers in the case were a lesbian couple married in New Zealand in 2015. The first Respondent was both the biological and birth mother of two girls, B and C, who were aged 11 and 10 at the time of the proceedings. Both girls were conceived by artificial insemination, and while they both live with the Respondent mothers, they have also spent regular time with the Appellant who they refer to as “Daddy”. The Appellant is B’s biological father and is registered as her biological father on her birth certificate. C’s biological father's identity is unknown, but the Federal Act section 60H deems the second Respondent to be her other “parent” and she is shown on C’s birth certificate as being C's other parent.
The case arose when the Respondents sought to relocate to New Zealand with the girls. The Appellant then instituted proceedings in the Family Court, seeking shared parental responsibility between himself and the Respondents.
In the initial Family Court judgment, delivered on 3 October 2017, Justice Cleary restrained the Respondents from moving overseas. In doing so, Justice Cleary applied section 60H(1)(a) of the Federal Act, holding that the Respondents were not in a de facto relationship at the time of the artificial conception of B. The consequence of this was that the Appellant, and not the second Respondent, was deemed to be B's legal parent (see Masson & Parsons and Anor  FamCA 789 (3 October 2017) and Parsons and Anor and Masson  FamCA 1148 (18 December 2017)).
On appeal (see Parsons and Anor & Masson  FamCAFC 115 (28 June 2018)), the main issue was with respect to whether the Appellant was a “parent” of B within the meaning of the Federal Act. The Respondents submitted that Justice Cleary erred in failing to recognise that the Judiciary Act 1903 (Cth) (“the Judiciary Act”) section 79 required Justice Cleary to apply the Status of Children Act 1996 (NSW) (“the State Act”), which had the effect that the Appellant was conclusively presumed not to be B’s father. In section 14 of the State Act is set down a series of presumptions of parentage of children born as a result of an artificial conception procedure and section 14(2) states:
Further, the State Act in section 14(4) states that such a presumption is considered to be "irrebuttable".
In a unanimous decision the Full Court of the Family Court (Thackray, Murphy and Aldrige JJ) upheld the Respondents' appeal, finding that subsections 14(2) and 14(4) of the State Act should be applied, unless a Federal law otherwise provided. They also found that section 14 of the State Act , which determines whether a man can be regarded as the father of a child, must be applied where that question arises in a federal jurisdiction. This was because the presumption in section 14 is "irrebuttable", and because the Appellant was neither married to, nor in a de facto relationship with the first Respondent, he was therefore presumed not to be B’s father. As a consequence, the Appellant ought not to have been treated as being B's parent for the purposes of the Federal Act. Further, their Honours rejected, the Appellant's submission, that a child is capable of having more than two parents.
The grounds for the appeal to the High Court were:
Special leave was granted in December 2018 (see Masson v Parsons & Ors  HCATrans 265 (14 December 2018)).
The Appellant filed a section 78B Notice in this matter on 8 January 2019, and both the Attorney-General of the Commonwealth and the Attorney-General of Victoria filed a notice of intervention.
The High Court ruled in the Appellant's favour, overturning the previous appeal and reinstating the initial Family Court judgement that ordered the Respondents to live in Australia. It also held that the State law was not applicable, and that the definition of "parent" under Commonwealth law should be applied.
In coming to its decision, a majority of the High Court held that the Judiciary Act section 79(1) did not pick up and apply the State Act sections 14(2) and 14(4). This was because the presumption in sections 14(2) and 14(4) operated as a rule of law, determinative of parental status, independently of anything done by a court or other tribunal, in contrast to provisions regulating the exercise of jurisdiction. The majority also held that, even if sections 14(2) and 14(4) were provisions regulating the exercise of State jurisdiction, they could not be picked up by the Judiciary Act section 79(1), because the Act had "otherwise provided" within the meaning of section 79(1). Further, because the tests for "contrariety" under the Judiciary Act section 79(1) and the Constitution section 109 were identical, sections 14(2) and 14(4) ". . . did not form a part of the single composite body of law operating throughout the Commonwealth and as such apply of their own force in federal jurisdiction as a valid law of New South Wales". See para  of the majority judgment:
As to whether the Appellant was a parent of the child, the majority held that no reason had been shown to doubt the primary judge's conclusion that the Appellant was a parent of the child. See para  of the majority judgment:
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Masson v Parsons  HCA 21 (19 June 2019), judgment summary and short particulars
Masson v Parsons & Ors  HCATrans 81 (17 April 2019)
Parsons and Anor & Masson  FamCAFC 115 (28 June 2018)
Masson & Parsons and Anor  FamCA 789 (3 October 2017)
Parsons and Anor and Masson  FamCA 1148 (18 December 2017)
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