A child is born

Ms Parsons was friends with Mr Masson (both names are pseudonyms, as in most family law litigation in Australia), though not at the time in a “de facto” relationship, when Mr Masson agreed to donate semen so that Ms Parsons could have a child by artificial insemination. From the outset he assumed, and it seems to have been agreed, that he would play an active role in the child’s life. The majority (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) summed up the arrangements as follows (at para [3]):

At the time of conception, the appellant believed that he was fathering the child and that he would, as the child’s parent, support and care for her.  His name was entered on the child’s birth certificate as her father.  Although the child thereafter lived with the first respondent and the second respondent, who is the first respondent’s female partner, the appellant took his relationship with his child seriously.  He had and continues to have an ongoing role in her financial support, health, education and general welfare, and he enjoys what the primary judge described as an extremely close and secure attachment relationship with the child

Later, however, the mother Ms Parsons and her partner wanted to move to New Zealand, which would have taken the child away from Mr Masson. He applied to the Family Court of Australia for an order preventing the move. His right to do so depended on whether he was a “parent” of the child for the purposes of the Family Law Act 1975 (Cth) (“FLA”).

But this claim was complicated by the fact of Australia’s federal distribution of legislative powers between the Commonwealth and the States. Both the FLA and the law of NSW (where the parties lived), provide what are called “presumptions” which apply about parentage in relation to the children of artificial conception procedures.

In particular, the law of NSW, the Status of Children Act 1976 (“SCA”), contains a “presumption” in s 14(2) that, where a child is born to a woman using sperm donated by a man who is not her husband, that the person donating the sperm is not the father of the child. This presumption is said under s 14(4) to be “irrebuttable”- that is, no amount of contrary evidence can overcome the rule.

However, while the Commonwealth FLA also provides a number of presumptions about parentage in these circumstances, the facts of the birth of the child here were not caught by any of those presumptions. (For the purposes of the FLA, the sperm donor is only declared conclusively not to be the child’s father in s 60H(1)(d) where the procedure took place while the mother was married or in a de facto relationship, and here the mother’s relationship did not commence until after the conception of the child.)

The law is debated

So the High Court (like the lower courts) were faced with two questions, in effect: would the State law removing parental rights from the sperm donor apply here (even when he had been actively involved in the life of the child), or would the decision be made under Commonwealth law? And secondly, if it were a decision under the FLA, might he be said to be a “parent” for those purposes?

(1) The clash between laws

The first question involved a number of complexities, mostly brought about by s 79(1) of the Judiciary Act 1903 (Cth), which was designed to apply the law of the States in certain ways in cases heard by Federal courts. For present purposes, and simplifying somewhat, the majority here held that s 79 was only intended to “pick up” provisions of State law which dealt with the processes and procedures of court hearings, rather than to pick up substantive rights and duties created by State law. The majority summed this principle up in this way at para [30]:

As was explained in Rizeq v Western Australia (2017) 262 CLR 1, the purpose of s 79(1) of the Judiciary Act is to fill a gap in the laws which regulate matters coming before courts exercising federal jurisdiction by providing those courts with powers necessary for the hearing and determination of those matters…
But, as was stressed in Rizeq, s 79(1) of the Judiciary Act has no broader operation than that.  In particular, s 79(1) is not directed to, and it does not add to or subtract from, laws which are determinative of the rights and duties of persons as opposed to the manner of exercise of jurisdiction. (footnotes omitted, emphasis added)

Here, the question as to parental status was a substantive one of rights and duties, and hence the NSW law was not “picked up” by the Judiciary Act. In particular, this was so because the presumption in s 14(2) SCA was clearly not simply a rule of evidence, as it was unable to rebutted by other evidence- see [34].

The majority also went on to note (though it was not necessary to do so), that even if s 14(2) SCA were to be otherwise “picked up” by the Judiciary Act as “procedural”, s 79 itself provided that a State procedural law could not be applied where it actually contradicted the Commonwealth law on the point. Here, they said, the Commonwealth had set out a set of rules on parentage which included the implication that someone who was a parent “according to ordinary acceptation of the word “parent””, would be a parent for the purposes of the FLA. Hence a State rule excluding a class of persons from recognition as a parent, who were permitted to be recognised as such by the FLA, would be contrary to the Commonwealth law, and could not be picked up by s 79- see para [45].

They also concluded that, for similar reasons, the provisions of s 109 of the Constitution, that give priority to Commonwealth law over State law where there is a clash, meant that the FLA provisions as to parentage (which were intended on examination to be a complete code as to parentage of children born by artificial conception procedures), would in any event prevail over the State law- see [51]-[52].

(2) Who then is a “parent”?

Finally, the majority considered whether Mr Parsons was a parent. They noted that:

the ordinary, accepted English meaning of the word “parent” is a question of fact and degree to be determined according to the ordinary, contemporary understanding of the word “parent” and the relevant facts and circumstances of the case at hand.

Para [54]

They rejected the claim made by Ms Masson that the community would not regard a “sperm donor” as a parent, by noting that in this case Mr Parsons had done much more than merely provide sperm.

To characterise the biological father of a child as a “sperm donor” suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is thereafter to have nothing to do with any child born as a result of the procedure. Those are not the facts of this case. Here, as has been found – and the finding is not disputed – the appellant provided his semen 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 since her birth he has done.  Accordingly, to characterise the appellant as a “sperm donor” is in effect to ignore all but one of the facts and circumstances which, in this case, have been held to be determinative

Para [54]

Hence the order of the original trial judge, that Mr Masson had parental rights, was upheld, as was the judge’s order that the child could not be permanently taken to New Zealand. (Edelman J, who gave a minority judgement, disagreed slightly with the way that the operation of s 79 had been characterised by the majority, but did not disagree with the outcome in this case, that the NSW law could not be applied to the question of Mr Masson’s parentage, and hence agreed with the majority’s decision upholding his parental rights.)

It should be noted that the Court explicitly did not rule on the result that would have followed had Mr Masson indeed been nothing more than a donor of sperm- see [55]. The resolution of that issue may have to await a future case. But presumably the issue, if arising for the purposes of the FLA, will have to be resolved on the “ordinary, accepted English meaning” of the word “parent”, rather than simply on the basis of the presumption under a law like the NSW SCA.

Some speculative applications in other cases

Finally, let me conclude this somewhat technical account with some admitted speculation about how the principles of this case might play out in other situations. In particular, the logic of this decision is that an “irrebuttable” presumption as to a “status” issue under State law, will not automatically apply for the purposes of Commonwealth law.

Let me offer a (perhaps controversial) example. Can a person who is a biological male, who now claims to be of the female sex, be regarded as a female for the purposes of Commonwealth law? The effect of the decision in Masson, it seems to me, is that the answer is: not always, even if the law of their State or Territory “deems” them to have changed sex.

Of course for the purposes of the current marriage law, since the amendments made by the Marriage Amendment (Definition and Religious Freedom) Act 2017 (see my comment on the change here), it is no longer a barrier to marriage that the parties are of the same sex. But the question might be relevant at some stage in relation to a marriage that took place prior to the commencement of that Act. And it might arise in other contexts.

It is true that the decision of the Full Court of the Family Court in The Attorney-General for the Commonwealth & “Kevin and Jennifer” & Human Rights and Equal Opportunity Commission[2003] FamCA 94 (21 February 2003) holds that a biological male had become a woman for the purposes of the marriage law, but this was explicitly in a situation where surgical procedures had been undergone. The specific finding was said to apply to a “post-operative transsexual”- see paras [374]-[375]. It should also be noted that the High Court itself has never directly considered this question. But we may for the moment assume that the decision of the Full Court here is correct.

Under some State laws, however, surgery is no longer necessary for a person to be “deemed” to have changed sex. Tasmania has introduced such a law, and Victoria is debating one now. While people in those States will be able to receive an altered birth certificate or identity document in their new sex, it seems that the effect of the Masson decision may be that this new sex (for a person who is not “post-operative”) will not automatically apply for all purposes of Commonwealth law. If there are any benefits made available to people on a sex-specific basis under Commonwealth law, they may be limited to a narrower class of persons than those who are recognised as members of that sex under State law. (For example, the Commonwealth Sex Discrimination Act 1994 allows “special measures” to be put in place for women to account for past discrimination. It may be that such measures, under Commonwealth laws, would not automatically extend to someone whose sex had been deemed to be changed under State law prior to any surgical procedure.)

Conclusion

The decision of the High Court in Masson, then, means that the question of who is a legal parent for the purposes of the Commonwealth family law legislation has to be decided under Commonwealth law, not State law. It has the result that the word “parent” can have its common meaning (of someone biologically related to a child) as well as any other meanings it may have, in circumstances where the biological parent has from the start shown an intention to be involved in the life of the child, and has actually done so.

(Thanks to Frank Cranmer from the Law & Religion UK blog, whose brief summary of the case here encouraged me to post about it!)