Custody case tests who is a parent

A sperm donor fights a lesbian couple from leaving Australia with the child who calls him “Daddy’’.

 

In a landmark case that could rewrite the status of parenthood, lawyers for a sperm donor who is attempting to stop a lesbian couple leaving the country with the daughter who calls him “Daddy” have invoked “the spectre of a child being left with no parents”.

Appearing at a hearing before the High Court yesterday, counsel for the commonwealth argued that the specific reading of the Family Law Act relied upon by the mother’s lawyer and state jurisdictions would leave some children without any parents at all, excluding even a woman who carried and gave birth to a child.

Attorney-General Christian Porter intervened in the case to support the man, known to the court as Robert Masson, after he lost an appeal in the Family Court to establish his right as a legal parent of the girl.

Lawyers for the Victorian Attorney-General are supporting the girl’s mother — known as Susan — in the bitter legal battle.

Mr Masson agreed to donate sperm to Susan, a friend of 25 years, on the understanding that he would play a role in the child’s life.

The court has heard that he was an active parent, was listed as the father on the girl’s birth certificate and both she and another child who is not biologically related to him call Mr Masson “Daddy”.

At issue in the case is whether the federal law has force, overruling the state law in NSW, and whether the state legislation is covered by section 79 of the Judiciary Act, which finds that all state laws “except as otherwise provided” by commonwealth law will “be binding on all courts exercising federal jurisdiction in that state or territory”.

Rachel Doyle SC, appearing for Victoria, argued the NSW law ought to apply and that “biology is not ever necessary or sufficient to establish the status of parenthood”. “Of course, in times gone by, biology was not sufficient to establish this either,” she said.

“In the case of illegitimacy, where a child was conceived and born ex-nuptial, the father bore no responsibility for that child.

“The spectre of a child being left with no parents (as put by the commonwealth) is not a real one. There will always be one parent for a child, very often two but never three.”

But when Bret Walker SC, appearing for Susan, made similar arguments, he was repeatedly pulled up by the High Court justices. “Does it not, rather, depend on the involvement the sperm donor has in the life of the child and is that not the crux of the issue,” Justice Virginia Bell said.

“You cannot just take (section) 60H on its own, Mr Walker.”

Justice Geoffrey Nettle said further: “Is there not a difference between the university student who is a donor to a sperm bank for a few bob and the sperm donor who plays a role in the life of the child?”

Mr Walker said the definition of parent under the Family Law Act was “not all that straightforwardly set down” but argued against the need to “liberate or expand … the notion of parent in order to serve the child’s best interests”. “There is a fluidity to the concept of parentage,” he said.

Ms Doyle said that in the absence of specific provision in the federal law, state laws should take precedence. She added that because all state laws were uniform, the “other spectre” of people “forum-shopping” in different ­jurisdictions for the right results did not apply.

“There is no state or territory where a person in the position of (Mr Masson) is considered the father,” she said.

Hearings continue today.