Proctor : August 2019
43 PROCTOR | August 2019 High Court confirms sperm donor as parent WITH ROBERT GLADE-WRIGHT FAMILY LAW Children – artificial conception – sperm donor wins bid in High Court for fatherhood In Masson v Parsons  HCA 21 (19 June 2019) the High Court allowed Mr Masson’s appeal against a declaration by the Full Court of the Family Court of Australia that he, as a sperm donor, was not a parent of the child. The appellant had provided sperm to the mother in the belief that he would father the child, would be named on the birth certificate and enjoy an ongoing role in the child’s life. The Full Court of the Family Court found that, because the birth mother and her wife were not de facto partners at conception, s60H of the Family Law Act 1975 (Cth) (FLA) did not apply. It was held that s79 of the Judiciary Act 1903 (Cth) applied such that the Status of Children Act 1996 (NSW) applied, which presumed that the donor father was not a parent. In making that decision, the Full Court held that s60H “leaves room” for the operation of state laws as to parentage, there being nothing in the FLA that “otherwise provides”. Rejecting that decision, the High Court held that Part VII of the FLA “leaves no room for the operation of contrary State or Territory provisions” (); that the Full Court was wrong to invoke s79 of the Judiciary Act to ‘pick up’ the NSW Status of Children Act; and that whether or not a person was a ‘parent’ under the FLA 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” (). Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ said () that the appellant “had an ongoing role in [the child’s] financial support, health, education and general welfare and... enjoys what the primary judge [Cleary J] described as an extremely close and secure attachment relationship with the child”, agreeing with Cleary J who said, relying on Cronin J’s reasoning in Groth & Banks  FamCA 430, that while the appellant did not qualify as a parent under s60H, he qualified as a parent otherwise than under that provision (). Property – long marriage – husband’s initial contribution of land soared in value due to rezoning In Jabour  FamCAFC 78 (10 May 2019) the Full Court (Alstergren CJ, Ryan & Aldridge JJ) allowed the wife’s appeal against Judge Mercuri’s contributions-based assessment of two-thirds: one third in favour of the husband after a 25-year marriage that produced three adult children. The husband owned a half interest in three parcels of land (30, 30 and 44 acres) at cohabitation, having bought them from his father in 1975 for $26,000. After 11 years of marriage, he sold his interest in the 30-acre lots to acquire all of the 44-acre lot. Originally used for a farm, the property was rezoned for residential use in 2010 and was sold in October 2017 for $10,350,000. The net pool was $9,033,913 plus superannuation of $371,686. At first instance, the court found ( of its reasons) that the parties’ contributions during cohabitation were equal; observed that the value of the property represented almost 90% of the non-super pool; cited Williams  FamCA 313 and Zappacosta  FamCA 56; and concluded that the husband “bringing...Property A...into the relationship has made a significant contribution which needs to be appropriately recognised in the division of property between the parties”. The Full Court () accepted the wife’s submission that “the primary judge erred in seeking a nexus between contributions and a particular item of property when assessing contributions holistically over a long marriage and when considering the assets of the parties on a global basis...quarantining from the assessment of contributions, all of the other contributions made by the parties...” . Before reassessing contributions at 53:47 in favour of the husband, the Full Court said (at ): “...[T]he Court in Williams somewhat overstated the importance of the increase in value of a piece of property at the expense of ‘the myriad of other contributions that each of the parties has made during the course of the relationship’ (Williams at ).” Children – final order made after discrete trial as to unacceptable risk at which father found to pose such a risk In Rodelgo & Blaine  FamCAFC 73 (26 April 2019) the Full Court (Strickland, Kent & Hogan JJ) dismissed the father’s appeal against a parenting order made by Judge Jarrett after a discrete hearing as to whether the children were at risk of harm from either parent. After finding that the father did pose such a risk, Judge Jarrett directed each party to file written submissions as to whether a further hearing was necessary or final orders should be made based on the finding of risk (). The mother and independent children’s lawyer (ICL) supported final orders. The father objected. Judge Jarrett made a final order that the mother have sole parental responsibility, that the children live with her and spend supervised time with the father of not less than two hours each fortnight. The father appealed, arguing that he had been denied procedural fairness. The Full Court said that the trial judge’s approach “was permissible pursuant to Division 12A of Part VII of the Act” () and cited s69ZN as to the principles for conducting child-related proceedings, s69ZQ(1) by which a court “must decide which of the issues... require full investigation and hearing and which may be disposed of summarily () and s69ZR as to the court’s power to make findings and orders at any stage”(). The court continued at -: “...[T]he trial of the discrete issue involved each of the parents and the[ir] witnesses... giving oral evidence and being cross- examined. ...[T]he family report writer and... the expert psychiatrist were the only... witnesses who did not give oral evidence... but...[they did provide] written reports...[the facts contained in which] were not in contest.  ...[B]oth the mother and the ICL provided written submissions...that it was in the children’s best interests for the Court to proceed to make final orders. Whilst...the father sought to have a further hearing...there was no agitation by [him] to the effect that he wanted the opportunity to cross-examine either of the expert witnesses before the Court proceeded to make final...orders. His written submissions...[were] largely a re-agitation of complaints about the mother...” Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).