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Alternative Law Journal – "Recognising Same Sex Parents – Bringing Legitimacy to Law" by John Tobin





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QUT Law & Justice Journal – "Re Patrick and the rights and responsibilities of sperm donor fathers in Australian family law" James McConvill & Eithne


Re Patrick and the rights and responsibilities of sperm donor fathers in Australian family law by James McConvill & Eithne Mills

I INTRODUCTION

We are in an era of rapid scientific development in the manner in which a child can be created. Society is increasingly accepting of using technology to make babies. …
The most important debate is not about how we create babies but protecting their rights. At the very least, as a community we must be able to define clearly a child’s parents, father, mother and family.[1]

The matter of Re Patrick[2] was the first case in Australia, and one of the first cases in the world, to deal with the issue of whether a sperm donor has a right of contact with the child under family law. Although the sperm donor father was granted access to the child on the basis of the child’s best interests, Guest J of the Family Court of Australia also held that the sperm donor was not a ‘parent’ under the Family Law Act 1975 (Cth) (‘Family Law Act’).[3]

Despite the enormous significance of Re Patrick from both a legal and social perspective, there has been little commentary on the case up to this point in time.[4] This is perhaps due to a very tragic set of events which followed Guest J’s order. The mother of Patrick did not handle at all well the decision by Guest J that the sperm donor was the ‘father’ of Patrick and that the father was to have four-hour fortnightly contact visits with Patrick, which would increase gradually as Patrick got older. It is understood that the mother had had psychiatric treatment since the court case to try and deal with the father’s involvement in Patrick’s life (according to press reports, the father was enjoying a healthy relationship with Patrick).[5] However, the treatment did not have the desired effect, and in August 2002 the mother took her own life and the life of little Patrick (then two years old).

Whilst the authors were understandably shocked and deeply upset by the mother’s action, we resolved that it was still appropriate to comment on the case and to support the decision of Guest J in Re Patrick that the sperm donor father be allowed access to the child. The authors also believe that, consistent with the best interests of a child, a known sperm donor should be regarded as a ‘parent’, and accordingly the article contains proposed amendments to Australia’s Family Law Act which would achieve this.

The authors will make the argument that if the Family Law Act is to expressly recognise that a sperm donor is to have rights in relation to the child, then the sperm donor should also have responsibilities in relation to the child consistent with what is in the best interests of the child.

II CHILDREN’S RIGHTS IN AUSTRALIAN FAMILY LAW

Read in the abstract, the objects and principles of Part VII of the Family Law Act (titled ‘Children’) are clear and unambiguous. The objective of the provisions is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties concerning the care, welfare and development of their children.

It is an accepted principle of Australian public law that international legal rules (increasingly being in the form of formal treaties) have no direct effect under domestic law until implemented through legislative action (the so-called ‘transformation’ theory).[6] Accordingly, Part VII of the Family Law Act was drafted with the aim of incorporating the rules and principles contained in the 1989 UN Convention on the Rights of the Child (the ‘UN Convention’).[7] The UN Convention, ratified by Australia in December 1990, recognises a broad range of children’s rights. The rights of the child do not depend on the status of the parents of that child; as equity and justice demands, they are rights accorded to children per se.

Article 3(1) of the UN Convention stipulates that in actions concerning children, the best interests of the child is the paramount consideration. Article 7 indicates that, as far as possible, the child has the right to know and be cared for by his or her parents. Article 9(3) indicates that children of separated parents have a right to maintain personal relations and direct contact with both parents on a regular basis except where it is contrary to their best interests.

Articles 18 and 19, respectively, require state recognition of the principle that both parents share responsibility for the development of their child and, further, the state must take appropriate legal, administrative, social and educative measures to protect children from all forms of violence and abuse.

As the Full Court held in B and B: Family Law Reform Act 1995 (‘B and B’),[8] the reforms made by the Family Law Reform Act 1995 (Cth) to the Children provisions contained in Part VII represent a major restatement of the law rather than simply semantics.[9] Indicative of this is the lack of proprietary language in the reform act, which emphasises the concept of parental responsibility for a child’s care, welfare and development. By introducing the concept of parental responsibility, Parliament was seeking to remove proprietorial notions surrounding the parent/child relationship, consistent with the terminology and philosophy of the Convention.[10] The influence of the Convention is particularly evident in the statement of objectives in s 60B of Part VII of the Family Law Act.[11]

In B and B, a case which involved the question of the extent to which children are able to enforce the rights enumerated in s 60B, the prevailing message from the Full Court was that in matters under Part VII, the ‘essential inquiry’ is the best interests of the child. This is clear from s 65E which states that when considering parenting orders, the Court must regard the best interests of the child as the paramount consideration.

Section 60B(2) also indicates that the principles it enumerates are subject to this consideration. The Full Court in B and B indicated that the best interests of the child are to be determined in light of the relevant guiding factors in s 68F(2),[12] and the objects and principles set out in s 60B, with the weight to be given to each consideration being determined by the particular facts of the case. This finding was affirmed in Marriage of R.[13]

The concept of parental responsibility may be found in s 61C(1) of the Family Law Act, which stipulates that each parent of a child under 18 years has parental responsibility for that child. Section 61B defines parental responsibility to mean ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’. The term takes its origins from the Children Act 1989 (UK) and, subject to court orders, it is ongoing despite changes to, or the termination of, the marital relationship. Whatever the marital status of the parties, parents are encouraged to make agreements in relation to matters concerning their children, rather than seeking a judicial response.

III THE CASE OF RE PATRICK

A The Factual Background

The authors consider it important to provide a full discussion of the facts involved in Re Patrick to provide the reader with a complete picture of the very sad set of events which Guest J was confronted with and required to piece together to achieve some sort of resolution.

The proceedings in Re Patrick involved a homosexual sperm donor (‘the father’), a lesbian couple and a 2 year old boy. In January 1998, the father entered into an agreement with the mother and her partner (‘the co-parent’) to provide genetic material for the purpose of artificially inseminating the mother. Although the terms of that agreement were bitterly contested at the hearing, it was plain to the court that the pregnancy of the mother followed many months of cooperation between the parties. In early January of 1999, the mother and the co-parent informed the father of the pregnancy. The earlier cooperation leading to the pregnancy was lost, and the relationship between the parties became one of animosity, so much so that the arrangements for the birth of Patrick (born on 11 September 1999) were kept secret from the father. Upon learning of the birth, however, the father instituted proceedings inter alia for contact with Patrick. On 2 June 2000, final orders for contact between the father and child were made by consent between the parties. These orders proved unacceptable to the mother and co-parent, with the result that when the matter came before Guest J, the positions of the parties were polarised. On 8 May 2001, the mother and co-parent filed an application with the Family Court pleading that the orders made on 2 June 2000 be discharged. The relevant orders made that day by Registrar Harold were as follows:

2. That the child Patrick born on 11 September 1999 reside with the mother and the co-parent.
3. That the mother and the co-parent have joint responsibility for decisions concerning the long term and day to day care, welfare and development of the child.
4. That the mother and the co-parent keep the father advised of any major health and education issues concerning the child.
5. That the father have contact with the child as follows:
(a) Each third Sunday from 8.30am to 10.30am or such other day or times as may be agreed commencing 25 June 2000.
(b) Such other contact as may be agreed.
(c) At the residence of LD or JB or such other venue as may be agreed.
(d) That upon the mother and the co-parent providing to the father 21 days’ notice in writing of their intention to and dates of travel, contact for one period shall be suspended on one occasion in the year 2000.
(e) With the person nominated by the mother and the co-parent to be available to the child.
6. That each party keep the others advised of their residential address and contact telephone number.
7. That if contact is unable to take place pursuant to 5(a) then contact shall take place on the following Sunday or at such other date or time as may be agreed.
8. That pursuant to Section 65L these parenting orders be supervised until 2001 by such counsellor as nominated by the Manager of Mediation to give any party to these orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of the parenting order.

On that occasion, the court noted that the contact orders detailed above were to remain in place until Patrick reached two years of age, and thereafter to be reviewed as Patrick matured. The court also noted that unless the father sought otherwise, the mother and co-parent were not to accompany Patrick during contact visits. It was further noted that the father agreed that the mother and co-parent have joint responsibility for decisions concerning the long-term and day-to-day care, welfare and development of Patrick. On 17 May 2001, the father sought orders at variance with those orders sought by the co-parent. The father sought final orders for contact with Patrick as follows:

1. That as from 11 September 2001, Order 5 of the orders of 2 June 2000 be discharged and that father have contact with the child as follows:
(a) from 10am to 1pm on 16 September and 30 September;
(b) from 10am to 3pm on 14 October, 28 October and 11 November;
(c) from 10am to 5pm on 25 November and each alternate Sunday thereafter until the child is three years of age;
(d) that the father have overnight contact with the child from Saturday 5pm to Sunday 5pm on five occasions before the child is three years of age such contact to coincide with the contact weekend in paragraph (1)(c) hereof;
(e) from 10am Saturday to 5pm each alternate weekend commencing when the child is three years of age;
(f) such further or other contact as agreed between the parties.

By the time the matter came before Guest J, the position of the mother and co-parent had changed to such a degree that Patrick could see his father for a period of no more than 3 hours twice per year unless the mother and co-parent agreed otherwise. The history leading up to the conception of Patrick is indicative of the quite complex arrangements which may have to be made by a lesbian mother desiring parenthood. Although the father and mother of Patrick first met socially in 1989, it was not until ten years later that the parties discussed seriously the likelihood of parenting a child.

On 5 January 1998, the mother invited the father to her home for the purpose of interviewing him as a prospective donor. On the 12 January 1998, the father made known his willingness to be a donor of genetic material to the mother. To this end, the father very soon after attended a sexual health centre in order to undergo tests for any sexually transmitted disease in anticipation of attempting to conceive a child with the mother. At the end of January 1998, a meeting was held in order to allow all of the parties to discuss the hoped for pregnancy and the role of the respective parties.

The following day the first attempt at conception took place. Somewhere between 26 and 36 attempts followed between 31 January 1998 and 16 December 1998. During the lapse of time between January and December 1998, it was obvious that the parties felt some disquiet at the failure to conceive. On 20 March 1998, the father had his semen analysed at the Mercy Hospital in Melbourne at the request of the mother due to their failure, despite artificial insemination, to achieve pregnancy. Attempts were discontinued for two months owing to the father’s absence in order to compete in the Gay Games held in Holland. Upon his return, the parties discussed the continuation of the process of artificial insemination, and agreed that it should continue. In January 1999, the mother’s pregnancy was confirmed to the father. This news was celebrated privately and publicly. It would appear from the evidence that celebration turned to dissention. On 8 March 1999, the father attended the home of the mother and co-parent in order to discuss the progress of the pregnancy and the care of the expected baby. It was then that the mother told the father of her wish to deliver the child without the presence of the father.

Within days of the meeting, the co-parent telephoned the father with news of the mother’s acceptance into a birthing centre. Very soon afterwards, the father in a telephone conversation with the mother and co-parent, asked that they change their minds and allow him to be present at the birth. Although it is not apparent from the facts of the case by whom mediation was instigated, it is a fact that on 14 April 1999 the parties attempted to reach an agreement regarding proposed care arrangements for the prospective child with the aid of mediator Michael Madden. The mother and co-parent had drafted an agreement for the occasion. No collective agreement was reached. On 21 April 1999 a further mediation session was held with Michael Madden. Again, no concrete agreement emerged. A third meeting was arranged for 7 May 1999. The mother and co-parent, however, cancelled. From that time, the evidence suggests that the mother and co-parent prevented the father from any further involvement with the birth.

Sometime later the father instructed a solicitor to seek details of the pregnancy and forthcoming birth from the solicitor of the mother and co-parent. No information in that regard was forthcoming. Instead, the former solicitor for the mother and co-parent advised that they no longer held instructions to act. They further advised that they had no details of the hospital in which the birth was to take place or of the date in which the mother was expected to deliver the baby.

Sometime after the birth of Patrick on 11 September 1999, the father learned of the baby’s arrival from a mutual friend of the father and mother. Despite the father now being aware of the birth, he was still unaware of the mother and co-parent’s whereabouts. It would appear from the facts of the case that through the services of a private investigator, the father was given an address at which the mother, co-parent and Patrick resided. Subsequently, the father made an application to the Family Court in which he sought inter alia the following outcome:

* that the mother and father have joint responsibility for making decisions concerning the long term care, welfare and development of Patrick;
* that the child reside with the mother, and
* that the father have contact with Patrick:
* on two occasions each week for two to three hours until the child was nine months old;
* thereafter on two occasions each week for five hours; and
* on two occasions each week to include overnight after Patrick was two years of age.[14]

The mother responded by asking the Family Court for an outright dismissal of the father’s application or, as an alternative, final orders as followings:

* that Patrick live with the mother and co-parent who shall retain joint responsibility for his long term care, welfare and development;
* that the mother and co-parent be responsible for Patrick’s day to day care, welfare and development; and
* that the father have supervised contact with Patrick twice yearly as agreed between the parties.

The Court adjourned the applications until 23 November 1999. On that date, the co-parent applied for leave to intervene in the proceedings. Orders were made by consent that leave be granted to intervene, and to respond to the father’s application on or before the 6 December 1999. The matter was then adjourned to the Registrar’s Duty List to be held 14 December 1999. In addition, all parties were ordered to attend counselling in accordance with s 62F(2) of the Family Law Act on 6 December 1999 and subsequent dates as directed.[15]

On 6 December 1999, the parties attended separate appointments with a confidential counsellor. This achieved little by way of agreement. Three days later, the co-parent also filed a response to the father’s application of the 18 October 1999 in which she sought an order that the father’s application be dismissed. In addition, she sought an order that the mother and she have joint responsibility for the long-term and day-to-day care, welfare and development of Patrick. She sought further orders that Patrick continue to live with the mother and herself and that the father’s contact with Patrick be otherwise reserved.

On 14 December 1999, all parties agreed to adjourn the matter to 10 February 2000. In the intervening time, Patrick, at the age of 14 weeks, had his first contact with his father. He saw his father again on 14 January 2000. The matter next came before the court on 10 February 2000. On that date, orders were made appointing a child representative for Patrick. The matter was then adjourned to 31 March 2000. Consent orders, however, were made allowing the father to see Patrick on several occasions. These orders inter alia provided: that the father have contact with Patrick on 5 March 2000, and 25 March 2000, between 10.30am and 12.00 noon (or on such other dates that may be agreed between the parties).

In addition, the parties consented to a welfare report to be prepared by Mr Vincent Papaleo to be presented to the Court. On 31 March 2000, the matter was further adjourned to 2 June 2000. It was also ordered that the father have contact with Patrick between 10.30am and 12 noon on three occasions, 16 April 2000, 5 May 2000 and 27 May 2000. The proposed contact for 16 April 2000 was cancelled by the mother and co-parent. The father did, however, see Patrick on the other two occasions ordered. So on 2 June 2000, final orders were made by consent. The 2 June 2000 final orders have been reproduced earlier in this description of the facts. It would appear from the facts that in terms of the father’s contact with Patrick, the orders were successful until 31 December 2000, when the mother and co-parent cancelled the next scheduled date of contact. This meant that the father did not see Patrick between 10 December 2000 and 21 January 2001.

On 26 October 2000, the mother and co-parent wrote to the father detailing concerns regarding Patrick’s interaction with his father and close relatives. Guest J reproduced the communication in his judgment. It is again reproduced here in order to emphasise issues of contention between the parties.

It has come to our attention that during contacts you are introducing your family members to Patrick using familial terms like `your grandmother’, `your aunt’ and `your cousin’.

Presumably you are also referring to yourself, or being referred to by your guests, as Patrick’s `dad’. This method of introducing your family, and labelling his relationship to them is likely to cause Patrick confusion and distress in the future as it is in direct contradiction to the reality of how Patrick experiences his family and the way in which we will be speaking of you and your family.

It is clearly our responsibility as Patrick’s lesbian parents and the people who have long term and day to day care for Patrick, to ensure that Patrick feels positive about and understands his alternative family structure and his method of conception, and to guide Patrick through the associated complex emotional, ethical and social issues. It is our responsibility to ensure that the people Patrick has contact with respect him, his family and the decisions we make as his parents. These people include you and the people you bring to contacts.

[Later]

Patrick has contact with lots of people who aren’t in his direct family or extended family but who are never-the-less significant. This includes the contact he has with you and your family. Patrick will know that you and your relatives have a biological relationship to him because he will know that you are his donor. We are happy to refer to you as the father in Patrick’s presence, but absolutely do not accept or support you referring to yourself, or encouraging Patrick to call you dad, father or any other such title. Nor do we accept or support familial terms like grandmother/grandson, aunt/nephew or cousin to be used in Patrick’s presence in reference to your relatives.

[Later]

Patrick lives in a cultural and community setting in which his family as we define it is acknowledged and affirmed:- by us, his extended family, our friends, his playgroup and the broader gay-friendly members of our society. He often hears the word donor and already knows many children in similar situations who have varying levels of contact with their donors. Patrick will grow up knowing the difference between a donor and a father. The discrimination against lesbian families is considerable and the decisions we are making in regard to how to support Patrick in this regard are not made on a whim but rather through extensive personal experience and research:- books, articles, conferences, support groups, professional advice and anecdotes. Patrick is part of a socially disadvantaged minority group, and thus has special needs …

We believe that you can choose to make Patrick’s life easier by supporting us in the decisions we make as Patrick’s parents, and that you can use contacts as a time in which to establish a relationship with Patrick which is not based so much on pre-conceived roles such as `father’ and `son’ but on a more individual basis. …

Patrick will eventually be old enough to understand the issues that surround his family, his conception and the broader matrix of his biological origins. Until he is old enough not to be confused or overwhelmed by these issues we, as his parents, will be making those decisions for and with him. If we are ever going to be able to speak amicably to Patrick about you and your family, we need to feel that you are granting the same respect that you would offer any other intact, valid and complete family. We are proud of our family and would certainly prefer to be in a position where we could encourage Patrick to be proud of his connection to you.

… (emphasis added)

On 6 December 2000, the father replied in terms which Guest J described as ‘conciliatory, sensitive and understanding’.[16] The father stated the following:

Thank you for your letter of 26 October. It was great to see Patrick last time on 26 November, he is really looking well and happy. Thank-you once again for making the visits possible and please pass on my thanks to LD for her kindness in giving up her time and making her house available. I look forward to these visits with Patrick and he is a credit to you both. He is growing up so fast now and I notice quite distinct changes every time I see him. While this has been a terribly difficult time for us all I tell myself that the most important thing is that Patrick is healthy and happy. I hope that things can improve between us.

I have taken on board, and accept your concerns about how my relationship with Patrick can be best explained to him in the future. In the agreement between us signed in June this year I did sign over to you both, residence, day to day and long term care and decision making for Patrick. This was agreed to by me at that time for the following reasons:

* That I believed it was in Patrick’s best interests;
* To show my willingness to support you both and your position as Patrick’s primary care givers;
* To try to improve the situation between myself and you both;
* To avoid further damaging and costly litigation.

In no way do I wish to undermine your relationship and I haven’t sought to do this in the past. I do however remain father to Patrick and have not given up any of the responsibilities or rights associated with fatherhood. It was agreed from the beginning that I would be a dad/father to our child and it was never agreed by me that I might be seen simply as an uninvolved donor.

Further I am concerned at the confusion Patrick might experience if I am described to him other than as his father. I believe it is important that Patrick should know that he does indeed have a father and one who he has seen regularly and continues to see regularly. It is undesirable for Patrick to grow up believing that there is something missing in his life, his father, when that is clearly not the case at all. It is far better for Patrick to know that he has a father who loves him very much and who he sees on a regular basis. This may not be what you both want and it may not be what I want but I believe that it is in Patrick’s best interests.

In June this year I was challenged by Vincent Papaleo’s report to the court to accept you both as Patrick’s parents. I have tried my best to do so and as I said earlier Patrick is clearly a credit to you both. You too were challenged by the same report to accept that it is in Patrick’s best interests for him to bond with his father and to have an ongoing relationship with his father. I would ask that you consider this. …

On 7 December 2000, the mothers and co-parent wrote to the father stating that, upon his return from contact with the father, Patrick was unusually ‘tired and vulnerable’. On 21 January 2001, the father resumed contact with Patrick. In March of that year, all parties attended confidential counselling, but no agreement was reached. Indeed, the mother and co-parent imposed conditions upon the father’s contact with Patrick which the father found to be unreasonable. These conditions are detailed in the following affidavit lodged with the court on 30 May 2001, in which the mother and co-parent recollect terms of an agreement for contact made in March 2001. It provided as follows (reference to ‘LD’ is to a friend of the mother and co-parent):

(i) The co-parent was to be present during the contact.
(ii) LD was to be ‘available to Patrick’ as we had defined her role in our 6 December letter to the father.
(iii) That he treat LD with more respect re: her role at contacts and the fact that it is her house.
(iv) That the father did not have any parenting responsibilities or rights, despite his claims, hopes and attitude. the co-parent and I held these responsibilities.
(v) That separation anxiety and stress related to contacts were real and serious issues for Patrick and Patrick’s family.
(vi) No photos were to be taken at the contact on 4 March 2001. The father was extremely resistant to this agreement.
….
(viii) The father to stay within fence line of LD’s property in accordance with the orders. We were specifically instructed that the footpath and the nature strip were outside of the fence line.
(ix) No familial terms to be used in regards to the father and his family members’ relationship to Patrick.
(x) No questions to the co-parent re: Patrick’s life outside of contacts unless specifically related to Patrick’s care during the contact.
(xi) All of LD’s property is available during contacts, within reason, under the terms of the order.
(xii) The father finds out more info re: child development in a way that does not increase his sense that he is or should be a parent.
(xiii) Attempt to `normalise’ experience for Patrick to reduce his stress and anxiety.
(xiv) That we all consider a referral for ongoing counselling due to the complexity of the situation.
(xv) That if the father did not change his attitude then chances of a positive relationship with Patrick were minimal.
(xvi) That Patrick needed a shorter contact time or a less stimulated environment in contacts. And that the constant focus on Patrick by the father and his guests, and the amount of unfamiliar toys, books, music, rugs, clothing, drinking cup, tape recorder etc. that he was bringing to contacts was unnecessary and contributing to Patrick and our stress.
(xvii) That the father takes responsibility for packing up and leaving on time.
(xviii) That the father establish a `goodbye’ ritual in last 1/2 hour of contact so as to avoid further confusion, stress and over-tiredness for Patrick.
(xix) That the father could bring his water bottle for Patrick’s usage, but that he was simply to bring it out then make no further reference to it during the contact. He was to refrain from using the water bottle in competition with that provided by the co-parent and I. That it was not his role to provide for Patrick.
(xx) That the father could bring his rugs for his own personal usage, but was to ensure that they were clean and did not smell of his body-odour.
(xxi) That the father could bring a couple of toys with him, and that he was to make more use of the toys, books etc that the co-parent and I provided. That he was again to refrain from engaging in competitive behaviour re: his toys books etc vs. those provided by us.
(xxii) That the father was to refrain from any competitive behaviour re: seeking Patrick’s attention when Patrick was relating to the co-parent.
(xxiii) That all parties reduce the level of attention on Patrick so as to normalise the experience for him and reduce stress, tiredness, confusion etc.
(xxiv) That the father could take one photo only, if Patrick gave his consent for the contact periods on 25 March and 29 April 2001.
(xxv) That the father brings no guests to the contacts on 25 March and 29 April 2001, so as to assess the effect on Patrick and us.
(xxvi) That the father write down the agreements as he appeared to remember them differently to everyone else in the room and that he not assume room to move in agreements.

These conditions caused the father’s solicitors to write to the mother and co-parent in what appears to be clarification and response to the restrictions. The letter stated:

1. That Patrick is scared when they or their friends try to take a photo. Our client has agreed to take one photo only during his contact visits. It is agreed that our client is to bring the camera out and leave it for ten minutes or so and then ask Patrick if he can take the photo and respond accordingly.
2. That LD finds it offensive that our client spreads his rug on the floor at contact as it constitutes a hazard as Patrick may trip on the rug. Our client has agreed that he will not spread the rug on the floor for Patrick. He will use the rug for his own benefit if necessary.
3. Our client has been permitted to use LD’s tape player to play music but he is not permitted to bring his own tape player as this constitutes `too much input’ for Patrick.
4. Our client has been bringing a whole bag full of toys to contact. This is apparently too much input for Patrick and our client is permitted to bring one or two toys only.
5. There has been an agreement that our client will begin the `goodbye ritual’ by packing up his things before the end of the contact visit and being ready to leave rather than LD signalling the end of the contact visit by announcing that there are just a few minutes left, Patrick being passed to her and whisked away to the back of the house whilst our client packs up and prepares to leave.
6. Our client is permitted to provide his drink cup for Patrick (his Christmas present) to fill it for him and offer it to him, but is not to compete with anything which LD might offer him.
7. Our client is to ensure that Patrick remains strictly within the fence line and is not to walk on the footpath or the nature strip. The contact visit is to be restricted to the boundaries of LD’s property.

In the following months, the relationship between the parties deteriorated to such a degree that contact between the father and Patrick was not permitted from 25 March 2001 until 11 July 2001. During that time, several matters occurred which Guest J considered significant. For example, the mother and co-parent failed to attend a counselling appointment on 1 May 2001. On the day after, the solicitor for the mother and co-parent informed the father’s solicitor that the mother and co-parent considered that further contact between the father and his son was not in Patrick’s best interest and therefore they intended to apply for a discharge of the contact order made on 2 June 2000. Subsequently, the mother and co-parent filed an application out of the Federal Magistrates’ Court of Australia seeking inter alia that the contact orders made on 2 June 2000 be discharged. Any further contact with Patrick by the father was refused by them. On 17 May 2001, the father responded to the application seeking orders in the following terms:

1. That as from 11 September 2001, Order 5 of the orders of 2 June 2000 be discharged and that father have contact with the child as follows:
(a) from 10am to 1pm on 16 September and 30 September;
(b) from 10am to 3pm on 14 October, 28 October and 11 November;
(c) from 10am to 5pm on 25 November and each alternate Sunday thereafter until the child is three years of age;
(d) that the father have overnight contact with the child from Saturday 5pm to Sunday 5pm on five occasions before the child is three years of age such contact to coincide with the contact weekend in paragraph (1)(c) hereof;
(e) from 10am Saturday to 5pm each alternate weekend commencing when the child is three years of age;
(f) such further or other contact as agreed between the parties.

On 19 June 2001, the parties agreed to the reappointment of the child representative, Dr Kovacs. Subsequently, orders were made by Federal Magistrate Phipps on 11 July 2001 directing the parties to see Dr Robert Adler in order that he prepare a welfare report. In addition, Federal Magistrate Phipps ordered that contact ordered pursuant to paragraph 5 of the 2 June 2000 order be resumed on 15 July 2001, allowing the father two hours contact with Patrick. On 10 August 2001, Federal Magistrate Phipps made orders transferring the proceedings from the Federal Magistrates’ Court to the Family Court of Australia.

In October 2001, Dr Adler submitted a report very much in line with the wishes of the mother and co-parent. In paragraph 3 of his report, it was his opinion that the father be allowed contact with Patrick at least twice a year for a period of no more than 3 hours on each occasion, unless more frequent and longer contact be agreed upon by the mother and co-parent. In paragraph 7 of his report, Dr Adler recommended that when Patrick reached a suitable age, he should have a say with regard to contact with his father. The mother and co-parent instructed their solicitor to write to the father’s solicitors proposing settlement in the matter in the terms of Dr Adler’s recommendation. Some days later, the proposal for settlement was rejected by the father’s solicitors. The end of 2001 brought little relief, with the mother and co-parent unilaterally cancelling the father’s contact with Patrick on two occasions. The matter came before Guest J on 21 January 2002.

B The Orders in Re Patrick

Justice Guest granted the father’s application of 17th May 2001 and made the following orders:

(1) That paragraph 5 of the Orders of 2 June 2000 be discharged.

(2) That the father have contact with Patrick as follows:

2.1 As and from the date of this order until 11 September 2002:
2.1.1 each alternate Sunday for a period of four hours at times to be agreed between the parties and failing agreement from 10am to 2pm commencing on Sunday 7 April 2002;
2.1.2 in the event that Father’s Day falls on a non-contact weekend, from 10am to 2pm on Father’s Day; and
2.1.3 as may otherwise be agreed between the parties from time to time.
2.2 As and from 11 September 2002 until 11 September 2003 as follows:
2.2.1 each alternate Sunday for a period of eight hours at times to be agreed between the parties, and failing agreement from 9am to 5pm;
2.2.2 in the event that Father’s Day falls on a non-contact weekend from 9am to 5pm on Father’s Day;
2.2.3 as may otherwise be agreed between the parties from time to time.
2.3 As and from 11 September 2003 until 11 January 2004 in each four week cycle as follows:
2.3.1 in week one on Sunday from 9am to 5pm;
2.3.2 in week three from 9am Saturday to 9am Sunday such contact to continue for a period of two months and thereafter such contact to conclude at 12 noon on Sunday.
2.4 As and from 11 January 2004 to 11 September 2004 in each four week cycle as follows:
2.4.1 in week one on Sunday from 9am to 5pm;
2.4.2 in week three from 9am Saturday to 3pm Sunday;
2.4.3 in the event that Father’s Day falls on a non-contact weekend from 9am to 5pm on Father’s Day;
2.4.4 as may otherwise be agreed between the parties from time to time.
2.5 As and from 11 September 2004 as follows:
2.5.1 each alternate weekend from the conclusion of school / creche on Friday to the commencement of school / creche on Monday, or in the event that the child is not attending school or creche, from 3.30pm Friday to 8.30am Monday;
2.5.2 one half of all school holiday periods at times to be agreed between the parties and failing agreement for the second half of all school holiday periods;
2.5.3 in the event that Father’s Day falls on a non-contact weekend from 9am to 5pm on Father’s Day;
2.5.4 in the event that Mother’s Day falls on a contact weekend, such contact be suspended at 9am on Mother’s Day;
2.5.5 on the child’s birthday and the father’s birthday for a period of two hours at times to be agreed between the parties and failing agreement from 4pm to 6pm on the said birthdays;
2.5.6 as may otherwise be agreed between the parties from time to time.

(3) That for the purposes of contact, the father do collect the child from and return the child to the home of the mother and the co-parent.

(4) That paragraph 3 of the orders made on 2 June 2000 do include the following:

‘… AND THAT the father have responsibility for decisions concerning the child’s immediate care, welfare and development whilst the child is having contact with him’.

(5) That pursuant to s 65DA(2) of the Family Law Act 1975 (as amended), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

(6) That the appointment of the child representative be discharged from this day

(7) That pursuant to Order 38 rule 25 of the Family Law Rules this matter reasonably required the attendance of Counsel.

C The Reasoning of Guest J in Re Patrick

It is useful at this point to examine the basis upon which judgment was reached by Guest J in Re Patrick. Of particular significance in Re Patrick was the provisions of the UN Convention on the Rights of the Child. It follows from the decision that the welfare of the child is the paramount consideration in a decision made relating to children in Australia. In other words, it is the best interests of the child which is to form the linchpin in any major decision of a court exercising family law jurisdiction. Guest J emphasised the point as follows:

In deciding an issue such as this, s 65E of the Act requires me to regard the best interests of Patrick as the paramount consideration. Accordingly, it is a consideration of these best interests that form the cornerstone of my judgment, and remains its final determinant. … In determining that which is in Patrick’s best interests, there are a number of matters which I must consider. They are set out in s 68F(2) of the Act, to which I will return later in this judgment. Subject to matters I will later discuss, I discharge my task in these proceedings having regard to the objects and principles set out in s 60B of the Act, which is in the following terms:
(1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that, except when it is or would be contrary to the child’s best interests:
(a) children have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children.’

It is important to consider what the Full Court said in B and B: Family Law Reform Act 1975 (supra) at par 9.54 when dealing with s.60B of the Act. The court made it clear that the section is a significant part in the exercise as it represented a deliberate statement by the legislature of the object and principles which I am to apply in proceedings under Part VII of the Act. However, the section is subject to s.65E of the Act. The Full Court pointed out that s.60B did not purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests and went on to say:

‘The object contained in subs (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in subs (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the court’s consideration of the matters in s.68F(2) and to the overall requirement of s.65E. The matters in s.68F(2) are to be considered in the context of the matters in s.60B which are relevant in that case. But s.65E defines the essential issue.’ See also Paskandy v Paskandy (1999) FLC 92-878 at par 35.[17]

His Honour went on to say that it was incumbent upon him in dealing with s 60B of the Act, to be mindful of the relationship with s 65E of the Act. His Honour referred to the judgment of the Full Court of the Family Court of Australia in B v B:

The object contained in sub-s 1 of s 60B can be regarded as an optimum outcome, but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-s 2 are more specific, but not exhaustive and their importance will vary from case to case. They provide guidance to the court’s consideration of the matters in 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.[18]

Another important issue addressed by Guest J was the position in Australia in relation to the definition of ‘parent’. Whether a person is a parent in Australia under the Family Law Act is not necessarily dependant on a biological or genetic connection. The position is governed by s 60H of the Family Law Act. In the case of the father of Patrick there was, of course, a biological connection. Patrick was born as a result of an ‘artificial conception procedure’ as defined in s 60D of the Family Law Act, in that the conception occurred by artificial insemination.

The relevant legislation in Australia (the Family Law Act, the Child Support (Assessment) Act 1989 (Cth) and the relevant infertility treatment and the status of children legislation of the states and territories) make it abundantly clear that the provision of sperm and a resulting birth may make the donor a father but not a parent. The uniformity of approach is deliberate. In July 1980, the Standing Committee of Commonwealth and State Attorneys-General determined that uniform legislation on the status of children born as a result of artificial insemination by donor treatments should be enacted in all Australian jurisdictions. In short, the legislation is designed to provide that a sperm donor in Australia would incur no liability, nor retain any rights with regard to a child born as a result of a donation of sperm. [19]

Guest J in the part of his judgment in Re Patrick dealing with who is a parent under the Family Law Act, looked to the dicta of Fogarty J in B v J and in particular his Honour’s opinion that:

There is no corresponding provision in the Family Law Act which would exclude a biological parent from otherwise being regarded as a parent. That is to say, that it is not clear that the provisions of s 60H do not enlarge, rather than restrict, the categories of persons who are regarded as the child’s parents. In the case of the Child Support (Assessment Act) 1989 (Cth), it is the words ‘means’ which make it clear that the provision is exhaustive. Prima facie, s 60H is not exclusive, so there would need to be a specific provision to exclude people who would otherwise be parents. Relevantly here, that means the donor of genetic material.[20]

According to Guest J, it follows that under the analysis of Fogarty J, a sperm donor who was not liable under the Child Support (Assessment Act) 1989 (Cth), may still be a parent under the Family Law Act, because of the non-exhaustive definition in s 60H of that Act. Guest J agreed with a commentary by Danny Sandor[21] that to conclude that a person may not be a parent under relevant State and Territory law, but yet be a parent under the Family Law Act, would give rise to complications, not the least of these being that unknown sperm donors could be saddled with significant responsibilities and rights neither sought nor expected. His Honour agreed with Sandor’s argument that the provisions of the Family Law Act should be in step with State and Territory presumptions, leaving the sperm donor known or unknown, outside the meaning of ‘parent’. According to the present authors, while this conclusion has validity for many participants in donor insemination arrangements, it has little or no relevance in situations of same-sex families where a known donor father is seeking a parental status definition of parenthood which owes more to a heterosexual model than it does to a clinical donation of sperm from an unknown donor.

In the matter of the father in Re Patrick, his Honour was compelled to reach the conclusion that the father was not a parent. In reaching this conclusion, his Honour drew attention to s 60H(3) of the Family Law Act which provides as follows:

(3) If:
(a) a child is born to a woman as a result of the carrying out of an artificial insemination procedure;
(b) under a prescribed law of a Commonwealth, or of a State or Territory, the child is a child of a man;
whether or not the child is biologically the child of a man, the child is his child for the purposes of this Act.

In short, s 60H(3) falls into line with State or Territory legislation in defining the status of parenthood under the Family Law Act. Accordingly, the biological father of Patrick could be a ‘parent’ under the Family Law Act only if there was legislation in Victoria conferring such status on him. In Victoria, the relevant provision is s 10F of the Status of Children Act 1974 (Vic). This section in effect provides that the donor of sperm in circumstances where there is no de jure or de facto marriage, has no rights and incurs no liabilities in relation to a child born as a result of artificial insemination.

The favourable outcome for the father of Patrick was premised not on parental status, but merely on his status as ‘… any other person concerned’ with Patrick’s welfare under s 65C(c) of the Family Law Act.[22] This is highlighted in the following statement by Guest J:

As matters presently stand the father’s position is this. Patrick has the right of contact ‘… with other people significant to (his) care, welfare and development.’ See s 60B(2)(b) of the Act. As a person who is ‘… concerned with the care, welfare and development of the child’, the father may apply for a parenting order pursuant to the provisions of s 65 of the Act. In that event, the child’s best interests are of paramount consideration (s 65E of the Act) and the considerations pursuant to s 68F(2) apply. On that basis the father, whilst not a ‘parent’ can have certain parental responsibilities conferred on him within section 61D(1) of the Act.[23]

It is now six years since Fogarty J remarked in B v J that:

It is a reality of life children are born as a result of a variety of artificial conception procedures, out of non-traditional circumstances, and into non-traditional families. Legislation which deals with the personal and financial responsibility for such children should be clear and exhaustive and should recognise the reality of the situations.[24]

In referring to the comments of Fogarty J, Guest J drew attention to the fact that little or nothing had changed since the judgment of B v J. His Honour stated:

Over five years have passed since his Honour expressed his view and, as these proceedings so starkly highlight, there has been no appreciable progress in this area. During the course of the proceedings, the issue of how to best address the various identified problems was discussed by counsel from time to time at my invitation by reason of my growing concerns.[25]

His Honour was clearly mindful of the legislative complexities in giving voice to the recommendations of Fogarty J. His Honour said:

Whilst one could envisage labyrinthine drafting problems alone, nonetheless, in my view legislation could be considered to recognise the reality in our community of our non-traditional circumstances evidenced in these proceedings and long ago identified by Fogarty J.[26]

In clarifying the basis for the definition of parent in section 60H of the Family Law Act, his Honour stated:

The current provision was designed to maintain consistency between the federal law and the status of children legislation of the states within the Commonwealth. It was also designed to ensure that the opposite sex partner of a woman undergoing artificial insemination treatment is considered a parent of any child conceived through such a procedure, and to protect donors from parenting responsibilities and financial burdens they did not agree to when making available their genetic material.[27]

His Honour went on to make reference to the fact that the model of artificial insemination procedures under Commonwealth and State law fall very much into the traditional heterosexual model, and made the point that ‘given the diversity of gay and lesbian families and the varying role donors play in the lives of children conceived using their donated sperm, the legislature needs to reassess s 60H of the Act and to consider the ramifications of its application in cases such as Re Patrick’.[28]

In the present authors’ opinion, in light of the stated objectives and aims of the UN Convention and of Part VII of the Family Law Act, it makes no sense and cannot in the normal course of events be in the best interests of the child, to be part of an agreement whereby one of the parents of that child is relegated to mere genetic material. In relation to Part VII of the Family Law Act it is not possible to make an agreement which ousts the authority of the Family Court of Australia. Guest J drew attention to this when he stated:

An agreement absolving a father from the obligation to pay maintenance for a child would not be enforceable directly or by way of estoppel. Nor would an agreement absolving the father from any other aspect of parental responsibility. Equally, a written agreement which provided for a donor to have frequent contact with a child could not prevail over a finding by the court, in a given case, that contact was not in the best interests of the particular child. Whilst agreements might be valuable in avoiding, pre-empting or resolving inter-personal disputes between the individuals in donor insemination arrangements, it is the considerations in s 65E[29] and s 68F(2)[30] of the Act rather than the terms of any agreement which will dictate the outcomes for the child.’[31]

In light of these observations by Guest J in Re Patrick regarding the impact of Part VII on the rights and responsibilities of sperm donor fathers, the authors have spent some time considering whether reforms to Part VII could be implemented to improve the position of sperm donor fathers whilst continuing to uphold the best interests of the child as the paramount principle.

IV PROPOSED AMENDMENTS TO AUSTRALIA’S FAMILY LAW ACT

The present authors believe that one part of the decision in Re Patrick, that the known sperm donor was not a parent for the purposes of Part VII of the Family Law Act is unfavourable, given that it means that sperm donor fathers are treated merely as any other person ‘significant to the care, welfare and development of the child’ for the purpose of the Act: s 60B(2)(b).[32] This does not reflect the reality of factual scenarios such as that in Re Patrick where the father is known and has a genuine interest in the care, welfare and development of the child, and also undermines the role of the sperm donor father in the life of the child.

It is our contention, consistent with the dictum of Guest J in Re Patrick,[33] that a sperm donor father who has a genuine and proven interest in the care, welfare and development of his child should be considered a ‘parent’ of the child. Not only does this mean that the father is entitled to the rights associated with being a parent under Part VII, but it also means that the father must exercise parental responsibilities, including child maintenance.[34]

After reading the decision of Guest J in Re Patrick, the present authors contemplated whether the problem which arose in Re Patrick as to whether the sperm donor father was a ‘parent’ for the purposes of the Family Law Act could be resolved by simply removing the barrier which stood in Guest J’s way of classifying the sperm donor father a ‘parent’ for the purposes of the Act: s 60H(3). The problem, however, with such a simple amendment would be that all sperm donor fathers would then come to be regarded as a ‘parent’ – meaning both sperm donors known to the mother, and sperm donors who provided their genetic material anonymously to a sperm bank.[35] The authors believe that it would be oppressive, and contrary to the best interests of the child, to extend parental rights and responsibilities to these anonymous sperm donors. It would also undoubtedly deter a significant number of males from donating sperm to assist women who are wanting to conceive through artificial insemination. In a recent article on the decision in Re Patrick, Fiona Kelly also stressed the need to distinguish between known sperm donors and anonymous sperm donors in any proposed legislative amendments to address the position of sperm donors fathers, stating:

It was obviously not Guest J’s intention that all sperm donors be given the status of ‘parent’ . … If the legislature were to agree with Guest J’s view that individuals in the position of the donor father should be considered ‘parents’ under s 60H, it would be necessary to make some legislative distinction between men like the donor father and other sperm donors.[36]

Accordingly, the authors have resolved that the most desirable amendment to the Family Law Act would be to model a new provision on s 11 of the Children (Scotland) Act, which relevantly provides:

11. (1) In the relevant circumstances in proceedings in the Court of Session or sheriff court, whether those proceedings are or are not independent of any other action, an order may be made under this subsection in relation to—
(a) parental responsibilities;
(b) parental rights;
(c) guardianship; or

(2) The court may make such order under subsection (1) above as it thinks fit; and without prejudice to the generality of that subsection may in particular so make any of the following orders—
(a) an order depriving a person of some or all of his parental responsibilities or parental rights in relation to a child;
(b) an order—
(i) imposing upon a person (provided he is at least sixteen years of age or is a parent of the child) such responsibilities; and
(ii) giving that person such rights;
(c) an order regulating the arrangements as to—
(i) with whom; or
(ii) if with different persons alternately or periodically, with whom during what periods,
a child under the age of sixteen years is to live (any such order being known as a ‘residence order’ );

(3) The relevant circumstances mentioned in subsection (1) above are—
(a) that application for an order under that subsection is made by a person who—
(i) not having, and never having had, parental responsibilities or parental rights in relation to the child, claims an interest;
(ii) has parental responsibilities or parental rights in relation to the child;

(b) that although no such application has been made, the court (even if it declines to make any other order) considers it should make such an order.

In effect, s 11 allows the court to make such order as it thinks fit in relation to parental responsibilities or parental rights, and this order may be imposed in the absence of an application by the parent or where the father actively seeks an order from the court.[37]

The authors’ proposed new provision would be Part VIIA of the Family Law Act. While the new Part VIIA would be different from s 11 as Australia’s Act talks about the rights of the child rather than parental rights and responsibilities, the general operation of the provision would be the same: sperm donor fathers who have a genuine interest in the care, welfare and development of the child would be able to apply to the Court for an order that they are a parent of the child for the purposes of the Act. Like s 11 of the Children (Scotland) Act, the best interests of the child would be the Court’s paramount consideration when determining whether or not to grant an order under Part VIIA. To overcome the problem of singling out sperm donors, the provision would refer to ‘biological fathers’ rather ‘sperm donors’. The new Part VIIA would read:

A Part VIIA- Biological fathers

70R-

(a) If the biological father of a child is not the parent of the child for the purposes of the Act due to a provision in Part VII above, the biological father can apply to the Court for an order that they are the parent of the child for the purposes of the Act.
(b) The Court cannot make an order under (a) unless it considers the making of the order to be better for the child’s welfare than not making an order.

The present authors’ believe that our proposed Part VIIA of the Family Law Act responds to the comments of Guest J in Re Patrick in an appropriate and balanced manner. As an order cannot be made until the Court has assessed all the relevant facts (including the willingness and ability of the biological father to be involved in the child’s care, welfare and development, and the attitude of the child towards the biological father) and considered that the making of the order will be better for the child’s welfare than not making an order (in accordance with proposed s 70R(b) of the Act), the new provision will ensure that raising the status of a sperm donor father to that of ‘parent’ will only occur if this is clearly in the best interests of the child. A known sperm donor genuinely interested and involved in the child’s life may want to be a ‘parent’ and therefore apply for an order under new Part VIIA, whereas an unknown sperm donor would be extremely unlikely to apply for an order under Part VIIA and even if they did, the application would certainly fail once the best interests of the child are taken into consideration.

In that sense, the consideration of the interests of the child would be an important protection. It would ensure that even though the Family Law Act would be amended to recognise the rights of sperm donor fathers who are outside what is considered to be the ‘traditional’ understanding of what a ‘parent’ is, the rights of the child would remain the primary focus. This would be achieved not only by incorporating a test to ensure that an order is not granted unless the child’s welfare is improved, but also through the biological father acquiring parental responsibilities once considered to be a parent pursuant to a Part VIIA order.

V CONCLUSION

The case of Re Patrick highlights that the principle of the best interests of the child applies in all cases involving children’s rights, without any exception. The principle cannot be compromised or ignored simply due to one biological parent of a child believing that a complete family unit can be achieved without the involvement of the other biological parent. The important point to come out of Re Patrick is that lesbian mothers who become pregnant with sperm provided by a known male donor are wrong to assume that they are justified in excluding him from assisting with the care, welfare and development of the child on the basis that he is a ‘mere donor’.

The development of the law in this way is not about undermining the status of lesbian relationships, but rather reinforces the depth and universality of the best interests of the child principle, and demonstrates that it will generally be in a child’s best interests to have regular contact with as many people as possible that have a genuine interest in the child’s welfare.

It therefore becomes important that an educational program be established to support lesbian women contemplating parenthood by making available to them information about the rights and responsibilities that sperm donors could potentially have in relation to the child. It is vital that all lesbian women considering a pregnancy to be achieved through donated sperm have available to them information about the law relating to the status of sperm donors in Australian family law. This way, lesbian women are less likely to become pregnant using the sperm of a known donor unless these women accept that the sperm donor father may become involved in a child’s life to the extent to which this is in the child’s best interests.

[*] Lawyer, Allens Arthur Robinson, Melbourne; PhD (Law) Candidate, Deakin University. This article was written independently of Allens Arthur Robinson, and the views expressed in this article do not necessarily reflect the views of Allens Arthur Robinson.

[**] Lecturer, School of Law, Deakin University.

[1] J Campbell, ‘Hatching, Unmatching and Parental Responsibility’ (2002) 10 Australian Health Law Bulletin 101.

[2] See Re Patrick (2002) 28 Fam LR 579.

[3] Justice Guest’s reasoning is explained below.

[4] At the time of writing, the only significant academic discussion of Re Patrick is by F Kelly, ‘Redefining Parenthood: Gay and Lesbian Families in the Family Court’ (2002) 16 Australian Journal of Family Law 17 (accessed via Lexis).

[5] See J Szego, ‘Battle for Boy Ends in Double Tragedy’, The Age (Melbourne), 3 August 2002, 1.

[6] See Nulyarimma v Thompson (1999) 165 ALR 621; Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. This is compared to the traditional ‘incorporation’ theory that rules of international law become automatically incorporated into domestic common law. It has been suggested that the ‘incorporation’ theory may still reflect the relationship between rules of customary international law and domestic law: See T Blackshield and G Williams, Australian Constitutional Law & Theory: Commentary & Materials (Federation Press, 3rd ed, 2002) 762-3.

[7] Though it should be noted that in B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, the Full Court of the Family Court said that, while it is clear that Part VII of the Family Law Act 1975 (Cth) adopts the terms and principles of the UN Convention of the Rights of the Child, the Convention had yet to be incorporated wholesale into domestic law, and is not specifically referred to in the Family Law Act 1975 (Cth).

[8] (1997) 21 Fam LR 676.

[9] See E Mills, Butterworths Tutorial Series: Family Law (Butterworths, 2001) 86.

[10] See above n 1, 101-2. Campbell provides a good overview of the changes introduced to the Family Law Act in 1996, and discusses how the emphasis is now on parental responsibility rather than parental rights and the rights of the child rather than possession or ownership of children.

[11] Section 60B states:

(1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2) The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests:

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and

(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children.

[12] Section 68F states:

(1) Subject to subsection (3), in determining what is in the child’s best interests, the court must consider the matters set out in subsection (2).

(2) The court must consider:

(a) any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes;

(b) the nature of the relationship of the child with each of the child’s parents and with other persons;

(c) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person, with whom he or she has been living;

(d) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(e) the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;

(f) the child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;

(g) the need to protect the child from physical or psychological harm caused, or that may be caused, by:

(i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or

(ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;

(h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(i) any family violence involving the child or a member of the child’s family;

(j) any family violence order that applies to the child or a member of the child’s family;

(k) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(l) any other fact or circumstance that the court thinks is relevant.

(3) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2).

(4) In paragraph (2)(f):

Aboriginal peoples means the peoples of the Aboriginal race of Australia.

Torres Strait Islanders means the descendants of the indigenous inhabitants of the Torres Strait Islands.

[13] (1998) 23 Fam LR 456.

[14] Re Patrick (2002) 28 Fam LR 579.

[15] Section 62F(2) of the Family Law Act provides:

(2) The court may, at any stage of the proceedings, make an order directing the parties to the proceedings to attend a conference with a family and child counsellor or welfare officer:

(a) to discuss the care, welfare and development of the child; and

(b) if there are differences between the parties in relation to matters affecting the care, welfare and development of the child—to try to resolve those differences.

[16] Re Patrick (2002) 28 Fam LR 579, 587.

[17] Re Patrick (2002) 28 Fam LR 579, 589-590.

[18] Ibid [40].

[19] See above n 4, [65]-[66].

[20] See Re B v J (1996) FLC 92-716, 83,620.

[21] D Sandor, ‘Children Born From Sperm Donation: Financial Support and other Responsibilities in the Context of Discrimination’ (1997) 4 Australian Journal of Human Rights 175.

[22] Section 65C of the Family Law Act provides:

A parenting order in relation to a child may be applied for by:

(a) either or both of the child’s parents; or

(b) the child; or

(ba) a grandparent of the child; or

(c) any other person concerned with the care, welfare or development of the child.

[23] Re Patrick (2002) 28 Fam LR 579, 647.

[24] B v J (1996) FLC 92-716, 83,621.

[25] Re Patrick (2002) 28 Fam LR 579, 647.

[26] Ibid.

[27] Ibid.

[28] Ibid 580.

[29] Refer to part II above of this article.

[30] Ibid.

[31] Re Patrick (2002) 28 Fam LR 579, 648.

[32] See also s 65C of the Family Law Act, in which a sperm donor father, as a person who is ‘… concerned with the care, welfare and development of the child’, may apply for a parenting order. This is discussed by Guest J in Re Patrick (2002) 28 Fam LR 579, 647.

[33] See Re Patrick (2002) 28 Fam LR 579, 648: ‘…consideration should be given to review the definition of ‘parent’ in s 60H of the Act to take into account that there are varying arrangements between donors and prospective mothers, and that donors such as the father in these proceedings may not only consider themselves a “parent”, but may also be considered by the recipient of the genetic material to be a parent.’

[34] See B v J (1996) FLC 92-716 where the Family Court of Australia held that a sperm donor father was not liable for child maintenance under the Child Support (Assessment) Act 1989 (Cth).

[35] Kelly, above n 4, argues that other problems with amending s 60H to make the donor father a ‘parent’ include that it may result in the creation of a relationship between the donor and child that is not the reality of a child’s life (see [51]), and would undermine the independence and boundaries of the ‘homo-nuclear family unit’ (see [66]).

[36] See above n 4, [55].

[37] See the recent Scottish decision of In the Matter of Child A, decided in the Glasgow Sheriff’s Court, in which s 11 is discussed in detail. This case is available on-line via the Scottish Law Courts website:

[Link: Original Article]

Australian Journal of Family Law – "Redefining Parenthood: Gay and Lesbian Families in the Family Court — the Case of Re Patrick" by Fiona Kelly

The Family Court decision of Re Patrick,1 in which a gay man who acted as a sperm donor to a lesbian couple was awarded contact with the 2 year old child conceived via his donation, raises fundamental issues about the meaning of family, legal parenthood, and the regulation of the gay and lesbian community. The case challenged the Court to move beyond heterosexual and gendered models of family, and to recognise the diverse family forms created by same-sex couples. This article critically analyses the judgment, focusing on whether a sperm donor in circumstances similar to those found in Re Patrick should be considered a ‘parent’ under the Family Law Act, and whether such donors should be liable for child support.

Introduction

Recognition of same-sex relationships and same-sex family units is understandably a central focus of gay and lesbian politics.2 ‘The family’ has long been considered, both legally and socially, the fundamental unit of society.3 Although the legislative boundaries of the family have recently been expanded through gay and lesbian relationship recognition legislation in most states,4 same-sex family units that include children remain largely unrecognised and unprotected. Re Patrick is the first case of its kind in Australia and is a significant statement of how the Family Court views lesbian families with children and the sperm donors that make these families possible.

Re Patrick raises many complex issues and it would be impossible to deal with them all. This article will focus predominantly on two issues: (1) whether the sperm donor/father should, as Guest J argued, be a ‘parent’ under the Family Law Act; and (2) whether he should be liable for child support.

A note on language

Before considering the judgment as a whole, it is necessary to briefly address the importance of nomenclature in the case. As feminists have argued for decades, the power to name, to construct the language with which society describes, is the power to shape the dominant discourse.5 The choice of language can include and exclude, acknowledge and make invisible. Given the unusual nature of the relationships in this case, questions of identity and definition were particularly significant and arguably at the centre of the dispute. The names given to each of the parties on the first day of the trial was an early statement as to how they would be viewed and how their roles would be understood. Would the man who donated sperm be called a ‘donor’? A ‘father’? A ‘parent’? Could he be a ‘father’ but not a ‘parent’, or a ‘parent’ but not a ‘father’? Is it possible to distinguish between the two? And what of the mother’s partner? Was she a ‘mother’ too? Was she a ‘parent’? Were Patrick and the two women together ‘a family’? These questions were both the issue to be determined and the procedural starting point. The choices made would inevitably shape the rest of the case.

Obviously the three parties did not fit easily into the categories usually applied in the Family Court — mother/wife, father/husband. However, Guest J decided from the outset that the parties would be known as ‘the mother’, ‘the co-parent’, and ‘the father’. The decision to refer to the mother’s partner as the ‘co-parent’ is commendable, particularly given the invisibility of such women in previous decisions of the Family Court.6 The term ‘co-parent’ is an accurate description of the role played by the mother’s partner. It reflects the day to day lived reality of the family, and the fact that she was granted joint responsibility for the day to day and long term care, welfare and development of Patrick under a Family Court consent order. The acknowledgment within the term co-parent that she is a ‘parent’ to Patrick (though not in law), is also a significant statement about the status of psychological parents in the Family Court. The choice cannot be seen as anything but a victory for non-biological lesbian parents.

The title to be given to the sperm donor/father is slightly more controversial given that the essence of his case was that he was a father seeking contact with his son, while the mother and co-parent saw him as a sperm donor and nothing more. The choice of nomenclature for the sperm donor/father also raised complex questions about the nature of parenthood, and fatherhood in particular. In the current culture of the Family Court being a ‘father’ is of considerable significance. Thus the choice between calling the sperm donor/father a ‘father’ or a ‘donor’ could not avoid being a statement as to how the individual, and his relationship to the child, would be understood.7

When writing this article I struggled with the issue of how to refer to the sperm donor/father. I was uncomfortable with the idea that biological parenthood automatically equated to fatherhood. Social science research has suggested that parenthood is a psychological relationship that should be understood from the perspective of the child, and that while biology is important psychological or social attachments are of at least equal, if not more, significance.8 This was the view taken by both expert witnesses in the case.9 I also questioned whether the sperm donor in this case would have been referred to as ‘the father’ if he had donated to a heterosexual couple. Was he given the status of ‘father’ simply because of the view that a child ‘needs’ a father, and no one else was filling this inherently gendered role? After all, Patrick had two parents who were more than adequately meeting his needs. Why did he need a third parent, a ‘father’? Or was the difficulty in this case that he did not have a male parent? Alternatively, the sperm donor/father may have been given the status of ‘father’ because it was the original intention of all three parties that he play such a role in the child’s life. But this was one of the central issues to be determined in the case, so to have attributed a status on the assumption that all parties had so agreed would seem to have pre-empted the factual findings.

Based on the expert evidence, the literature on psychological parenting, and the fact that it was always intended that Patrick live in a lesbian household and have what can only be regarded as a non-traditional relationship with his biological father, I concluded that the male individual in this case fell somewhere between ‘father’ and ‘donor’. He was not a mere sperm donor, as it was eventually found that it had been the intention of all the parties that he play some role in the child’s life, but neither was he a ‘father’ as we commonly understand the term. It was clearly intended that this child be born into a lesbian household in which he would always reside, and that the two women would be his parents and primary caregivers. Calling the sperm donor ‘the father’ imputed a heterosexual family structure on to the women and Patrick when this was neither their lived reality nor their intention. If the term ‘father’ could be used in a fluid sense then it may have been appropriate, but I do not believe that given the highly gendered environment of the Family Court and recent debates about same-sex parenting, we have yet moved to a place where fatherhood can be understood in this less traditional form. Ideally, I would hope that we could move to a position where fatherhood (and motherhood) could take many forms, and the gay and lesbian community is certainly challenging society to reach this point.

This conclusion still left me with the problem of what to call the sperm donor/father. Ultimately I settled on ‘donor father’. This terminology is designed to encapsulate the fact that he is a biological father by way of sperm donation — a category of ‘father’ commonly found in the gay and lesbian community — but that his role in the child’s life was not intended to be that of a traditional father, but of something else, a third way created by a community that does not necessarily fit into or comply with traditional gender roles or parenting structures. Departing from the language used by the court is obviously a significant statement, but this decision was made in an effort to reflect the reality of Patrick and not of an inherently heterosexual and heterosexist language system.

The facts

The facts in this case were bitterly contested and the majority of the judgment is spent unravelling the competing claims. This article will outline the main facts but, because of the length of the judgment, it does not attempt to cover all of the factual issues. Due to the vastly differing stories told by the parties, issues of credibility were an important issue for determination. After hearing all of the evidence Guest J accepted the donor father’s evidence over that of the mother and co-parent. This finding was significant to the eventual outcome.

The mother and donor father met in 1989 and over the next 9 years saw each other as social acquaintances. In October 1997 the mother placed an advertisement in a gay and lesbian newspaper seeking a ‘sperm donor/co-parent’. The advertisement read: ‘Attractive, creative intelligent gay woman seeks sperm donor/co-parent. Gay man/couple preferred. Level of involvement negotiable. GSOH (good sense of humour) essential.’

The mother interviewed two prospective donors in response to the advertisement, but ultimately she contacted the donor father. The mother and donor father met on 5 January 1998 when the mother asked him if he would be interested in becoming a known sperm donor. The two parties discussed the role the donor father would play if the arrangement went ahead. According to the donor father’s evidence, the mother told him she had always had him in mind as a sperm donor. It was also his evidence that he told her he wanted to be known as the child’s parent and to see the child one or two days a week and that she agreed to this. The mother’s evidence was that she:

… did not ask him if he were interested in being a father to my child, but rather whether he would be interested in being a known sperm donor … I said that the co-parent and I wanted to have children, and that I was interviewing donors. I deny that the applicant said to me that he wanted to be known as the child’s parent, but rather state that he told me he wanted to be known to the child. The donor indicated to me that he did not wish to be an anonymous donor. I acknowledge that and asked him what level of contact he desired. He responded he would like weekly contact, and I responded that could certainly not happen to begin with, and would ultimately be at the co-parent and my discretion. He asked if his role was to be as a ‘co-parent’, and I indicated this was not possible. I said, the only person I wanted to co-parent with was the co-parent. I deny that we made any agreement for the applicant to have regular contact with the child at this interview …10

Justice Guest accepted the donor father’s evidence that he had always made it clear that he desired involvement in the care of any child for 1 or 2 days a week and that he would be known as the father. He also accepted the evidence of the donor father that he had always wanted to be a parent. His Honour concluded that had the situation been as deposed to by the mother the donor father would not have proceeded beyond their first meeting.

On 30 January 1998 all three parties met to further discuss their plans. The donor father’s evidence was that the parties discussed who was to be present at the birth, immunisation, schooling, whether his name would appear on the birth certificate, and the mother’s fears about not wanting to be financially dependent on him. He said that he again made it clear that he wanted to see the prospective child 2 days a week and to take on the role of an actively involved father. He gave evidence that the mother agreed to this. He further deposed that it was agreed that they would have a three-way partnership where each of them was an equal partner to the agreement and had equal parenting responsibility. In contrast, the mother’s evidence of this meeting was that the parties reached the following agreement:

• (a)

the co-parent and I were the child/rens parents;

• (b)

his role was as a known donor, who would hopefully have some contact with the child/children at our discretion;

• (c)

the child/ren would not reside with him;

• (d)

he would not pay maintenance;

• (e)

his name would not be on the birth certificate and we (the mother and co-parent) would name the child/ren;

• (f)

as the first birth mother it was my decision as to who would be at the birth and he would have no ante-natal role;

• (g)

he would not have long term or day to day decision making responsibilities;

…11

Again, Guest J accepted the donor father’s version of events. The first insemination session took place on 31 January 1998 and inseminations continued several times each month for 11 months.

After accepting the evidence of the donor father as to the pre-birth agreement, Guest J stated that any agreement reached between the parties did not confer binding parental rights on the mother and co-parent, or define the status of the donor father. He stated:

The issue of the discussions that took place on 5 January and 31 January 1998, while not binding, is relevant in assisting me to understand the intention of the parties at the time and also has ramifications extending to credit issues.12

On 3 January 1999 it was confirmed that the mother was pregnant. On 28 February 1999 all three parties attended a function at the home of a mutual friend. At that function the donor father announced that he and the mother were having a baby. It was his evidence that he thought at the time that that was ‘not the right thing to say’, and that he did not intend any disrespect to the co-parent.

The parties met again on 8 March 1999 and it was at this meeting that their ‘once amicable and agreeable relationship became progressively embittered’.13 At the meeting it was revealed by the mother that she did not want the donor father to be present at the birth. He protested and the three unsuccessfully sought to resolve the issue through mediation. At the first mediation session in April 1999 the donor father was handed a proposed agreement by the mother and co-parent which provided for all contact to be entirely at their discretion. The donor father’s evidence, which the court accepted, was that this did not reflect the earlier discussions of the parties and he refused to sign it.

Following the mediation sessions the mother and co-parent went into hiding and concealed the birthing arrangements from the donor father. The donor father learnt of Patrick’s birth on 11 September 1999 from a friend and upon hearing this news filed an application in the Family Court seeking, inter alia, that he and the mother have joint responsibility for Patrick, that Patrick reside with the mother, and that the donor father have contact. The co-parent was not mentioned in the donor father’s application. The mother opposed the application seeking orders that Patrick live with the mother and co-parent, that they retain joint responsibility for his day to day and long term care, welfare and development, and that the donor father have supervised contact with Patrick twice yearly. On 23 November 1999 an application was filed by the co-parent for leave to intervene in the proceedings and on that day orders were made by consent that leave be granted.

In December 1999 the donor father had his first contact with Patrick, who was then aged 14 weeks. Further contact visits took place between December 1999 and April 2000 pursuant to consent orders. During this time the parties also attended upon Vincent Papaleo, a psychologist, for the purpose of preparation of a report to be presented to the Court.

On 2 June 2000 final orders were made by consent. The orders stated, inter alia, that the mother and co-parent have residence of Patrick and joint responsibility for his long term and day to day care, welfare and development, and that the donor father have contact every third Sunday for 2 hours at the home of a friend of the mother and co-parent. The orders were to remain in place until Patrick attained the age of 2 years, after which they would be reviewed.

Following these orders the donor father had contact with Patrick on a regular basis. However, the relationship between the parties further deteriorated. On 26 October 2000 the mother and co-parent wrote a letter to the donor father and requested that he not refer to himself as Patrick’s ‘dad’ during contact and that he not refer to his family members as Patrick’s ‘relatives’. The letter also stated:

Patrick will grow up knowing the difference between a donor and a father. The discrimination against lesbian families is considerable and the decisions we are making in regard to how to support Patrick in this regard are not made on a whim but rather through extensive personal experience and research … Patrick is part of a socially disadvantaged minority group, and thus has special needs …

We believe that you can choose to make Patrick’s life easier by supporting us in the decisions we make as Patrick’s parents, and that you can use contacts as a time in which to establish a relationship with Patrick which is not based so much on pre-conceived roles such as ‘father’ and ‘son’ but on a more individual basis … (emphasis in judgment)14

The donor father responded to this letter stating that he did not wish to undermine the mother and co-parent’s relationship but that, ‘I do however remain father to Patrick and have not given up any of the responsibilities or rights associated with fatherhood’.15

Following several months of correspondence between the parties, in which the mother and co-parent sought to severely restrict the donor father’s movements and behaviour during contact, the mother and co-parent unilaterally ceased contact and filed an application in the Court seeking that the contact orders of 2 June 2000 be discharged.

On 11 July it was ordered that contact resume and that the parties attend upon Dr Robert Adler for the purposes of a welfare report. On 23 October 2001 Dr Adler delivered his report in which he recommended that:

3. The father be allowed contact with Patrick at least twice a year for a period of no more than 3 hours on each occasion or at a greater frequency and duration if agreed by the mother and the co-parent.

7. As Patrick gets older his wishes regarding contact with the father should be respected and his frequency of contact varied accordingly.16

The mother and co-parent sought resolution of the dispute in the terms of Dr Adler’s recommendations. The donor father rejected the offer. The dispute came before Guest J in the Family Court in January 2002.

The decision

The decision of Guest J addressed two separate questions. First, whether contact was in Patrick’s best interests, and second whether the donor father was a ‘parent’ under s 60H of the Family Law Act.

Guest J ultimately held that it was in Patrick’s best interests to have contact with the donor father on a regular and increasing basis. His decision was complex and lengthy and much of the reasoning will be dealt with in the discussion below. In summary however, Guest J held that he was satisfied that Patrick is ‘familiar with his father, comfortable in his presence and gains considerable reward and benefit from their mutual interaction’.17 He cited with approval Papaleo’s view that ‘psychological relatedness and not biological relatedness was the primary consideration when determining the welfare of children’,18 but also agreed with Papaleo’s unequivocal belief that regardless of ‘… ideological considerations’ for any of the parties involved, ‘it was important for Patrick to know who fathered him’.19

Guest J ultimately ordered that Patrick have fortnightly contact with the donor father for 4 hours, increasing to 8 hours by September 2002, and then to overnight and eventually weekend contact by the time Patrick is 4 years old. While the contact ordered is less than that which would be granted to a typical father in the Family Court, it is still considerable.

In making his decision about contact Guest J gave considerable weight to the agreement between the parties. While he stated that the agreement was not binding on him and was only ‘relevant in assisting [him] to understand the intentions of the parties at the time’,20 his decision to award contact rested heavily on his finding that the donor father had donated his genetic material ‘upon an understanding that he was to have a role in the life of any prospective child’.21 The weight Guest J gave to the agreement between the parties is significant, though it should be noted that Guest J’s factual findings in relation to the agreement essentially involved the donor father ‘contracting in’ rather than ‘contracting out’ of parenting.22

Historically, Australian courts have refused to permit parents to contract about parenting on the basis that it is contrary to public policy.23 In particular, the courts are concerned that permitting parents to contract out of their parental responsibilities will leave children without financial support, and may result in reliance on the public purse.24 For example, in B v J Fogarty J made it clear that a parent cannot contract out of paying child support:

The financial support of children is a matter of great public interest … Longstanding authority in Australia and overseas has made it clear that such is the nature of responsibility in this area that parents may not contract out of that responsibility. In addition, it needs to be emphasised that not only has the community a substantial interest in this area but the right to child support is the right of the child which may not be waived or contracted out by that child’s parents, both of whom have the responsibility for that child.25

Gay and lesbian families challenge many of the assumptions upon which these policy arguments are based. The reasoning of Fogarty J is predicated on a two-parent, heterosexual model of parenting. It does not acknowledge the possible (albeit non-legal) responsibilities of a non-biological co-parent or the diminished role of a biological father who serves as a known sperm donor. Instead it treats responsibility as a function of biology, which is largely in conflict with the model of family created by same-sex couples.

To bring a child into the world via known sperm donation necessarily involves an agreement between the parties involved. For this reason, the vast majority of children born to lesbian parents are the subject of some sort of ‘contract’ between the mother, the donor, and usually a co-parent. While Guest J was careful to state that the agreement between the parties in Re Patrick was not binding on him, the weight which he placed upon it suggests a tentative willingness to recognise the importance of such agreements to decision making about gay and lesbian families. Given the paramountcy of the best interests principle agreements about children will never be binding on the court, but by giving some force to the agreement in Re Patrick Guest J sought to acknowledge and affirm the model of family created by the three parties (as he found it to be). This is an important step forward for gay and lesbian parenting.

The second issue Guest J was required to resolve was the more technical question of whether the donor father is a ‘parent’ under the Family Law Act. In many ways this issue had already been determined in the decision of B v J, where it was held that the definition of ‘parent’ in s 60H of the Family Law Act did not include a sperm donor (and thus a sperm donor was not liable to pay child support).26

The relevant subsection of s 60H states:

(3) If:

• (a)

a child is born to a woman as a result of the carrying out of an artificial conception procedure; and

• (b)

under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;

then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.27

The effect of this subsection is that where, under a prescribed law of a State or Territory the child is a child of a man, the child is also to be regarded as his child under the Family Law Act. There are no such prescribed laws in any State or Territory.28 Since no prescribed laws exist, Fogarty J held that the sperm donor in B v J was not a ‘parent’ for the purposes of the Child Support (Assessment) Act.

However, Fogarty J suggested in dicta in B v J that it did not necessarily follow that because a sperm donor is not a parent under the Assessment Act he is also not a parent under the Family Law Act.29 It was Fogarty J’s view that the definition of ‘parent’ in s 60H of the Family Law Act, when not restricted by the Assessment Act, may not be exhaustive, and thus sperm donors may qualify as ‘parents’.

Relying on the explicit wording of s 60H and its state and territory equivalents, as well as the arguments of Sandor and Kovacs, Guest J rejected this view, finding it would be a ‘curious result given that all states and territories have laws which presume that a sperm donor is not a parent unless he is the legal or de facto husband of the recipient’.30 Further, such a result would have serious and unintended implications for sperm donors who would suddenly find that they have responsibility for any number of children born via their donations. Guest J thus concluded that the donor father is not a ‘parent’ under the Act. However, he did not believe this was a satisfactory position:

Given the father’s active involvement in Patrick’s conception and his ongoing efforts to build a relationship with his son, it is a strange result that he is not Patrick’s ‘parent’.31

The question of whether the donor father should be a ‘parent’ under the Act is considered below.

The issues

It should be made clear from the outset that Re Patrick represents a significant step forward for gay and lesbian families in Australia. It exists in stark contrast to earlier jurisprudence on lesbian parenting in the Family Court. Positive statements about lesbians and gay men are few and far between in Australian law, making the decision in Re Patrick a significant moment in our legal history. Re Patrick is the first decision in Australia to give appropriate recognition to a non-biological lesbian co-parent, to what Guest J calls the ‘homo-nuclear family’,32 and to the ability of gay and lesbian parents to raise healthy and happy children. It also makes important recommendations in relation to increasing access for lesbian women to state regulated assisted reproduction services, and the counselling facilities that accompany these services. While these gains may seem long overdue, it is interesting to note that a case with almost identical facts, Child A, heard in Scotland at around the same time as Re Patrick, did none of these things and actually implied that being raised in a same-sex household equated with being raised in a home where there was domestic violence, drinking, gambling, and physical or sexual abuse.33 The decision in Re Patrick is all the more significant given that decisions such as Child A can still be made in 2002.

At times this article is critical of certain aspects of the decision in Re Patrick, and certainly challenges the reader to consider the implications of some of the findings. In particular, it addresses the problems raised by the recommendation that some sperm donors be given the status of ‘parent’, and considers whether such a proposal seeks to impose a heterosexual model on to a same-sex family unit. While the article is sometimes critical it is not, however, intended to detract in any way from the courageous step forward that Re Patrick represents.

While Re Patrick is predominantly a case about same-sex parenting, as Arnup and Boyd argue ‘parenting for lesbians and gays occurs in a highly gendered context’.34 Historically, lesbian women and gay men have fought as a united front in the battle for recognition of their relationships and their families. However, with the increasing incidence of lesbian couples having children using the sperm donations of gay men, it is inevitable that some of the future battles about ‘family’ will be found within the community. Unfortunately, it will be impossible to remove such disputes from the highly gendered atmosphere that currently pervades family law in Australia and overseas.35 The recent reassertion of fathers’ rights,36 as well as the ongoing attacks on single motherhood and single women and lesbians who seek access to assisted reproductive services,37 form the backdrop to this dispute. An indication of how families such as Patrick’s are sometimes viewed is evidenced by the opinion of Prime Minister John Howard who, over the past 2 years has stated frequently that, ‘the fundamental right of a child within our society is to have the reasonable expectation, other things being equal, of the care and affection of both a mother and a father’. Thus while Re Patrick is very much a decision about same-sex parenting and the recognition of gay and lesbian families, the gendered context in which it was decided cannot be dismissed.

(a) Sperm donors and legal parenthood

While the issue of whether the donor father is a ‘parent’ under the Act is irrelevant to the issue of contact — the Family Law Act permits ‘any person concerned with the care, welfare or development of a child’ to seek a parenting order38 — it is significant to the larger picture. Being a ‘parent’ under the Act carries with it substantial social and financial rights and responsibilities. It also signifies a status in law as well as in society that we see as exclusive and important.

After determining that the language of s 60H meant that the donor father is not a ‘parent’ under the Act, Guest J indicated that this was an unsatisfactory position:

I have found that the father holds a genuine and profound paternal love for Patrick and has, notwithstanding the negative definitions sought to be ascribed by the mother and the co-parent, much to offer the child in achieving the milestones of his development over forthcoming years. It is in these particular circumstances difficult to understand that he is excluded, for the purposes of the Act, from being properly known as a ‘parent’ of Patrick, but merely to have jurisdictional status in the Family Court as ‘… any other person concerned’ with Patrick’s welfare (s 65C(c) of the Act), or as was submitted on the part of the applicants, to have an avuncular role in the child’s life.

To be Patrick’s biological father in the circumstances found by me and yet denied by bare statutory definition appropriate nomenclature as one of his ‘parents’ in my view sits awkwardly with the provisions of an Act which regulates family law in this country. It falls seamlessly from the expert evidence of both Dr Adler and Mr Papaleo that the mother and her committed lesbian partner in their homo-nuclear relationship are the child’s ‘parents’, but that a similar and appropriate recognition is not accorded to the biological father.39

The situation of the donor father does ‘sit awkwardly’ with the Family Law Act, but as his Honour goes on to say, s 60H was drafted ‘with a heterosexual model in mind’.40 There was never any expectation that sperm donors would want to be involved in the lives of children conceived via their donations, and there was certainly no expectation that the heterosexual parents of a child born via artificial insemination would encourage any parental involvement on the part of a sperm donor in the child’s life. Where Guest J’s reasoning is problematic is where he states that it is incongruous that the mother and co-parent are the child’s ‘parents’, but that the donor father is not granted similar recognition. While the expert evidence put the co-parent in the category of a ‘social parent’, the Family Law Act gives her no recognition at all. She has parenting orders in her favour, but only by virtue of being a ‘person concerned with the care, welfare or development of the child’, the same provision under which the donor father is eventually awarded contact.41 The co-parent and the donor father in fact find themselves in exactly the same position, the donor father because he is deemed a mere sperm donor by the Act, and the co-parent because she has no biological link to the child to which she, in conjunction with the mother, is the primary caregiver. Thus any criticism of the legislative status of the donor father needs to be accompanied by similar concern for the position of the co-parent who, until she sought to intervene in the proceedings, was not even a party to the dispute.

This discussion raises two separate issues. First, whether individuals in the situation of the donor father should be ‘parents’ under the Family Law Act and second, if they are parents how should this status be recognised?

(i) Should the donor father be a ‘parent’ under the Act?

Before addressing the issue of whether the donor father should be a ‘parent’ under the Act, it is necessary to consider why Guest J thought it appropriate to draw a distinction between the donor father in this case and other sperm donors. In some sense the decision is not surprising. It is difficult to imagine the court lamenting the unrecognised status of a sperm donor to a heterosexual couple when the result would be that the child has two fathers and that the biological father could exercise, in conjunction with the biological mother and non-biological father, parental responsibility over a child living within an intact heterosexual family unit. The very intention of s 60H and the state and territory equivalents was to protect the heterosexual family unit by treating the child as the child of the husband. So why were the family unit and the non-biological parent in Re Patrick not afforded the same protection?

In his expert evidence, Papaleo grappled with this question, eventually concluding that the nature of this family was significantly different from the norm, and that this needed to be taken into account when deciding how the different relationships should be recognised:

… Mr Papaleo stated his position as Patrick having two parents and a father and which was a distinction he made throughout his evidence. When it was put to him by [the mother’s counsel] that the orders sought by the father would intrude upon the homo-nuclear family ‘… because that leads him to having not two parents, but three parents’ Mr Papaleo said:



‘Does it, or does it convey to him that he has two parents and a father who is not a parent because there is a different — they exist in a very different model. They are a different model anyway and — we are having to make the rules on our feet as we go. There is no reason for me to think that Patrick’s development will do anything but progress extremely well in the care of his parents. Professor Adler has described him as a very strongly and securely attached child. My observations of him, in the company of his father on the video tape, suggests that unequivocally. Why is it that we can’t incorporate in these rules parents and a father, the father who doesn’t have the same sort of involvement, and I think that there are other models of this …’

He agreed that the father’s role could be seen as ‘… one down’ from that of the mother and the co-parent. He acknowledged that the father was seeking significantly less contact than a ‘… parent’ may seek and significantly, had entrusted important decisions about Patrick’s day to day life and existence to the mother and co-parent. Mr Papaleo described him as a father who did not have the same sort of involvement as the mother and the co-parent and went on to explain:



‘… I think we have to re-invent the fatherly relationship to this situation. It is clearly not the kind of fatherly relationship I have with my child but it is different. It is more than a stranger, less than a parent, it is different to a grandparent, it is more important than a grandparent, it is different to an uncle. It falls somewhere in between. Hopefully it is a loving, caring, regular, familiar, male adult figure in his life who also happens to be his biological parent.’ (emphasis in original)42

While Guest J found Papaleo’s evidence to be ‘persuasive and insightful’,43 he did not ultimately accept Papaleo’s opinion that Patrick has ‘two parents and a father’. Instead he argued that this construction was ‘caught in time’, and that with the effluxion of time ‘matters will materially change’.44 This is quite a significant departure, as it seems to suggest that as Patrick gets older and matures he will come to see his family as being made up not of ‘two parents and a father’, but of three parents. This finding gives the donor father a status beyond what Papaleo understood him to have. It is thus not surprising that Guest J concluded that the donor father should be a ‘parent’ under the Act.

In considering this issue it is interesting to compare the decision in Re Patrick with another case with similar facts. The New York trial court decision of Thomas S v Robin Y, gives some insight into how children in same-sex households may see their reality, and how it might differ from the reality the Courts may subscribe to them. The decision in Thomas S dealt with a gay sperm donor (Thomas S) who sought an order of filiation and visitation which, at trial, was successfully defeated by the biological mother, Robin Y, and the child’s co-parent, Sandra S. How Ry, the child at the centre of the case, identified her parents and sibling laid much of the groundwork for Kaufman J’s decision that Thomas S should fail in his action.

In Thomas S the two women, Robin Y and Sandra S, decided in 1979 that they wanted to have children. In an agreement between the two women and a gay man, Jack Kolb, Sandra S conceived a child via artificial insemination. In reaching the agreement, Kolb verbally agreed that the two women would raise the child as co-parents, that he would have no parental rights or obligations, and that he would make himself known to the child at a future date selected by the mothers. The child, Cade, was born in 1980. Soon after Cade’s birth a second sperm donor, Thomas S, was found and he agreed to the same conditions that the mothers had established with Kolb. The second child, Ry, was born in 1981. Although the mothers and their two daughters lived in the same area as Thomas S for most of the first year of Ry’s life they had little contact with him. They moved away from the area in 1982 and until 1985 had virtually no contact with Thomas S.

In early 1985, Cade began asking about her biological origins. The mothers contacted both sperm donors to arrange for the children to meet ‘the men who helped make them’. The mothers made it clear that they still expected the donors to respect the agreement they had made, and also requested that the men treat the sisters equally. Thomas S agreed to both requests.

The first contact with Thomas S went smoothly and over the next few years the two mothers and their daughters visited Thomas S several times a year, and occasionally vacationed together. In 1991, Thomas S sought to reinstate his parental rights over Ry and also sought visitation with Ry without her co-mothers being present so that she could be introduced to his family. At this point the women severed all contact with Thomas S.

At trial the court heard the testimony of Dr Schneider, a psychiatrist, who with their consent had conducted lengthy evaluations of all parties. Dr Schneider recommended against an order of paternity and visitation. The judgment of Kaufman J summarises Dr Schneider’s evidence in what is a telling account of the reality of Ry, the child at the centre of the dispute:

Ry, Dr Schneider said, considers Sandra R and Robin Y to be her parents and Cade to be her full sister. She understands the underlying biological relationships, but they are not the reality of her life. The reality of her life is having two mothers, Robin Y and Sandra R, working together to raise her and her sister. Ry does not now and has never viewed Thomas S as a functional third parent. To Ry, a parent is a person who a child depends on to care for her needs. To Ry, Thomas S has never been a parent since he never took care of her on a daily basis.

Ry, Dr Schneider said, views Robin Y and Sandra R as having a relationship with each other that should be given respect. She knows that she, Cade and her mothers comprise an unusual and unconventional family. She knows that some outside her family have often shown intolerance and insensitivity toward her family. Notwithstanding this intolerance, Ry’s own view of her family is that of a warm, loving, supportive environment.

Ry, he said, views this court proceeding as an attack on and threat to her positive image of herself and her family. Her sense of family security is threatened. [For Ry, a declaration of paternity would be a statement that she, Young, and Steel constitute one family unit and Cade, Russo, and Kolb form another. This juxtaposition of relationships frightens her]. … Ry does not want to visit Thomas S. [for various reasons, Dr Schneider believes. She is angry at him for undermining the security she felt in her concept of family. She feels betrayed because she and her family had counted on him as a supporter of their unconventional family unit. She feels he is acting out of a selfish desire to get what he wants, without appreciating how hurtful his actions have been to her and her family.]45

Dr Schneider did not believe that Ry had been ‘brainwashed’ into expressing these views, though Kaufman J recognised that Ry’s views were obviously shaped by those of her mothers.46 Drawing in part on the evidence of Dr Schneider, Kaufman J held that Thomas S should be estopped from a declaration of paternity, despite his biological and social relationship with the child. It was his view that although Thomas S had a relationship with Ry that was closer than her relationship with many family friends, that did not mean that she viewed him as a ‘parental figure’. Kaufman J also relied on the fact that Thomas S had shown no interest at the outset in exercising parental rights, had not paid child support, had not attempted to establish paternity earlier, had not seen Ry for the first 3 years of her life and had not supported the ‘functional family relationships’ of Robin Y, Sandra S and their children, to estop him from claiming paternity. Finally, Kaufman J held that a declaration of paternity would not be in Ry’s best interests because:

[A] declaration of paternity would be a statement that her family is other than what she knows it to be and needs it to be. To Ry, Thomas S is an outsider attacking her family, refusing to give it respect, and seeking to force her to spend time with him and his biological relatives, who are all complete strangers to her, for his own selfish reasons.47

The decision of Kaufman J was overturned by the Appeal Court which viewed the family not as Robin, Sandra, Ry and Cade, as Kaufman J had, but as Thomas, Robin and Ry, a family no different from that which exists when parents divorce. The Appeal Court held that paternity statutes define parenthood by biology alone. Thus as Ry’s biological father Thomas S was entitled to an order of filiation.

Obviously the facts in Thomas S are different to those in Re Patrick where the donor father sought involvement in Patrick’s life from the time of his birth. The difference in age between the children is also significant. However, the decision in Thomas S at first instance is still of assistance. The relevance of the case to a discussion of Re Patrick is not that Thomas S failed at first instance where the donor father succeeded, but that it gives some insight into the reality of the children being raised in these families. Ry’s sense of her family was of having two mothers and a sister. In her mind Thomas S’s actions threatened her family security and giving him the status of ‘parent’ would have undermined her concept of family. In spite of biology and heterosexual society, Ry did not see her family in these terms. For Ry, family and parenthood were much more about functional parenthood and her lived reality. Although she had spent time with Thomas S and had developed a relationship with him, as have Patrick and the donor father, she did not see Thomas S as a ‘parent’. It would be easy to dismiss the views of a 10 year old, but considering that the Court has little knowledge of the perspectives and experiences of children being raised in same-sex families it would irresponsible to do so. In addition, given the growing global prominence of children’s rights,48 and in particular a child’s right to express a view about decisions that affect them,49 courts should be reluctant to disregard a child’s perception of their familial bonds.

Obviously Patrick is not old enough to articulate his views, but interestingly the views expressed by the mother and co-parent, and dismissed by the court, closely resemble those articulated by Ry. Guest J outlined the mother’s evidence as this:

[Counsel for the father] asked the mother what harm could come to her relationship with the co-parent if contact were to be ordered by the court as sought by the father. She explained that the family would ‘… no longer exist’ … She said that if an order was made for the father to have contact with Patrick, the court would in fact be ordering ‘… the destruction of’ her family.50

In an earlier affidavit the mother had deposed:

[T]he co-parent and I are certainly not coping with what we continue to see as an intrusion on our family life. The reality, as we see it, is that the father as (sic) a sperm donor who enabled me to conceive but that we are Patrick’s parents.51

The co-parent articulated similar views, at one point stating that what the donor father was asking for was a ‘total reality shift’ for Patrick.52 Guest J rejected the evidence of both of the mothers, noting in particular, ‘The fact that the applicants see the father as an intrusion in their family life is a matter for them. The reality is, he is not.’53 Guest J also found that the mother’s view that court ordered contact would ‘destroy’ her family was ‘fanciful’.54

These conflicting views as to the ‘reality’ of a situation are difficult to resolve. Arguably the court’s views as to the parties’ ‘reality’ and the child’s best interests are inextricably linked to a heterosexual, and often patriarchal model. On the other hand, how should the court respond to a 10 year old who says that forcing her to have contact with her biological father is a statement of biology but not of the reality of her life, and that his wish to see her undermines her concept of family? If Patrick were old enough to articulate similar views what would the court have decided?

These issues are raised not to suggest that one view is the correct one, but simply to highlight the difficulty of relying in these cases on principles firmly grounded in a heterosexual context. Put simply, amending s 60H so that the donor father is a ‘parent’ may result in the creation of a relationship that is not the reality of a child’s life.

A second problem posed by the prospect of reforming s 60H to make this donor father a ‘parent’ is that gay and lesbian families come in many diverse forms. As Guest J points out:

[Gay and lesbian families] cannot be characterised as a homogenous group. Children conceived via artificial donor insemination may have only two mothers, others such as Patrick, may have two mothers and a father, and others, may have two mothers and two fathers. In a rare number of cases a child may have only two fathers. Within each of these family forms itself there may be variations in the level of involvement of the father or fathers in the child’s life. Accordingly, whilst a child may have two mothers and a father, this does not mean that the father plays a traditional ‘fatherly’ role.55

Not only is there diversity in family forms, there is also diversity in the arrangements made by lesbian couples and their sperm donors. In his decision, Guest J cites a survey of 84 women attending the Sydney Lesbian Parents Conference in 2000, which found that a vast array of arrangements and relationships existed within these families.56 Sixty-six per cent of the respondents with children conceived via donor insemination reported that the donor had no parenting responsibilities or decision-making role, while 12% reported that they shared parental responsibilities with the donor. In relation to contact between the child and the donor, 31% had no contact, 33% had ‘some’ contact, 22% had regular contact, and 13% had ‘extensive’ contact, with the donor relating to the child as a non-resident parent.57 These statistics paint a picture of gay and lesbian parenting that cannot be easily summarised. What is evident though is that the donor father in Re Patrick is in a minority as a donor who has been granted what can only be considered ‘extensive’ contact in the context.

It is thus evident that before implementing reform based on this case, these facts, and these parties, it is important to recognise the diversity of gay and lesbian parenting arrangements. With the statistics quoted above as a backdrop, it is difficult to endorse strict legislative rules. To legislate for sperm donor parenthood when so few donors and lesbian couples enter into arrangements with that intention is likely to create additional conflict, both for the women and their donors. There is the possibility that in the clamour to protect the donor father in Re Patrick the legislature and the court may create rules contrary to the arrangements made by the vast majority of lesbian mothers and their donors. Reform that seeks to ‘find fathers’ for children born into lesbian families is contrary to all of the evidence that children raised in same-sex households develop in the same way as those raised in heterosexual homes.58 Any reform that does arise out of Re Patrick must offer the ‘homo-nuclear family’ the same protection and respect as the current legislation offers the heterosexual nuclear family. It must resist seeing it as a family missing a father. As Nancy Polikoff argues, children being raised in gay and lesbian families ‘need to be assured that the reality of their family structure will not be destroyed by subsequent imposition of definitions of parenthood that do not comport with their experience’.59

(ii) If the donor father is a ‘parent’ how should this be recognised?

If the donor father were to be given the status of ‘parent’ under the Act it would be, as Guest J and Dorothy Kovacs point out, an ‘alarming’ situation for most participants in donor insemination arrangements.60 Sperm donors throughout the country would find that they suddenly have financial responsibility for children conceived using their sperm and that these children have a right to know and be cared for by them.61 It was obviously not Guest J’s intention that all sperm donors be given the status of ‘parent’. His dissatisfaction with s 60H was that it precluded this father, who wanted a relationship with the child, and who had exercised contact and actively sought to increase this contact.

If the legislature were to agree with Guest J’s view that individuals in the position of the donor father should be considered ‘parents’ under s 60H it would be necessary to make some legislative distinction between men like the donor father and other sperm donors. It is difficult to know how that might be done. Guest J appears to argue that the donor father should be a ‘parent’ under the Act based on the following:

He was the donor of his genetic material upon an understanding (as I have found) that he was to have a role in the life of any prospective child. He has at all times following Patrick’s birth intelligently demonstrated by both sacrifice and concession a sensitive tolerance of a secondary role to that of the mother and co-parent. I am quite satisfied that he has never relinquished nor wavered in his desire to be part of Patrick’s life. He has actively, solicitously and patiently contributed to his conception. He has persevered, despite the imposition of the many unreasonable conditions to which I have earlier referred, in his contact with Patrick and collaterally maintained ‘… a strong and unrelenting wish’ to be part of his life. He has demonstrated an ability to foster a positive and loving relationship with Patrick.62

This is strong evidence of the donor father’s desire and diligence, but is not easily translated into a legislative rule, particularly when that rule would be designed to ensure that donors to heterosexual couples are not caught by the same provision. The practical difficulties of distinguishing between sperm donors highlights the possibility that the underlying reason for the distinction is the court’s desire to find a ‘father’ for a lesbian family unit.

An alternative to reforming s 60H would be to leave the legislation as is and instead use the best interests principle and parenting orders, as Guest J did, to accord to individuals, when appropriate, the rights and responsibilities of parenthood. This option would allow for a degree of flexibility that might best acknowledge the diverse nature of gay and lesbian families. It would permit the Court to evaluate evidence about the relationship between the donor and the child, the donor’s involvement in the child’s life, and his intentions both prior to the conception and following the birth. It would also allow the Court to hear, in cases where the child is old enough, evidence of the child’s understanding of the relationship. In essence, decisions would be made in the same way as Guest J made the decision in Re Patrick, and there would be no need for the strict application of a rule. The obvious problem with this proposal is that it leaves both sperm donors and co-parents without legislative protection. Of equal concern is the issue of whether the best interests principle can be extracted from the heterosexual environment in which it has developed.

The best interests principle is inherently indeterminate, and despite the guidance of the s 68F(2) factors it has the potential to reflect biases and presumptions based on particular notions of family.63 As Southin J of the British Columbia Court of Appeal put it, when making best interests determinations ‘judges are tied by the invisible threads of their own convictions’.64 The interpretation of the best interests principle has developed within a highly contested environment in which women’s organisations and father’s rights groups have battled over the issue of what role fathers should take in the lives of their children post-separation.65 The debates are inextricably linked with arguments about domestic violence, relocation and child support. They are also premised on a heterosexual model where once intimate partners have separated and/or divorced. While cases do come before the court in which the parents have never lived together and where the father has never lived with the child, few would involve heterosexual individuals who conceived a child via non-intimate contact on the premise that the child would never live in the same home as the father.66

The parties in this case exist in stark contrast to the typical family in the Family Court. The biological parents have never been in an intimate relationship and their child was not conceived via sexual intercourse. It was never intended that the child do anything but reside with the mother and co-parent, and it was always intended that the child be raised in a female same-sex household that by its very nature did not include a ‘father’. While the best interests principle is intended to be an independent assessment of the child’s best interests, when the child it was historically designed to protect was presumed to be born into a heterosexual relationship it is difficult to distance the principle from heterosexual models and norms. While I would like to think that the principle could rise above such an attack, when the Act includes definitions of parenthood premised on a heterosexual marriage/de facto relationship, and s 60B refers to a child’s right to know ‘both their parents’ which, although not gender specific is clearly premised on a two parent model, I have grave doubts as to its versatility.

In Re Patrick the application of the best interests principle resulted in a decision in favour of contact. The fact that Patrick had experienced numerous contact visits with the donor father and had developed a relationship of attachment with him seems to support this finding. Guest J’s conclusions as to the nature of the agreement between the parties also supported a finding in favour of the donor father. The contact awarded was, however, quite significant and essentially imposed on Patrick a ‘separated parent’ family model. Arguably this model does not adequately reflect the fact that Patrick was born into an intact nuclear family, and has the potential to undermine the stability of the family unit created. It was the argument of the mother and co-parent that six contact visits per year were adequate for Patrick,67 and that any more would ‘destroy’ their family. Their proposal may seem like very little contact in comparison with the ‘typical’ Family Court contact order of every second weekend and half of school holidays, but it reflects the primacy of the mother and co-parent as Patrick’s parents and reflects the level of contact prevalent in the majority of gay and lesbian families. In my view, the Court must avoid the temptation to see a lesbian couple as ‘missing’ a father. Children like Patrick are entitled to have their families affirmed by the courts and the courts must be careful not to use the best interests principle to impose a gendered model of family on to a same-sex family unit.

(b) Sperm donors and child support

While the issue of child support was not explicitly dealt with in Re Patrick, the case necessarily raises the question of sperm donor liability. Re Patrick upheld the decision of Fogarty J in B v J, in which it was found that a sperm donor is not liable to pay child support under the Assessment Act.68 The position in Australian law after Re Patrick is that a sperm donor to a lesbian couple may obtain some of the rights of a parent, including fortnightly contact, but bears no financial responsibility. Somewhat surprisingly this situation received no attention in the judgment.

Though the issue of child support was not discussed by Guest J, his belief that the donor father should be a ‘parent’ under s 60H necessarily has child support implications. Because child support liability in cases of artificial insemination is tied to the definition of ‘parent’ in s 60H, amending the section to include individuals such as the donor father would also make them liable for child support. In my view, such a result has negative implications for the homo-nuclear family. Obviously there are significant economic and social reasons for biological parents having financial responsibility for their children, but many of them do not apply to gay and lesbian families. Biology is of less importance in same-sex families where one of the child’s parents is, by definition, not a biological parent, and a biological parent may have no role at all. Given these circumstances, a child support scheme based on biological parenthood alone would negate the role played by, and the responsibilities of, a non-biological co-parent, and arguably imposes a gendered family structure on a same-sex family unit.

In my view, child support liability in gay and lesbian families should be based on a social parenting model that reflects the child’s actual family structure rather than biological ties. This was the approach taken in the NSW Supreme Court decision of W v G,69 though the degree to which the court was trying to ‘find’ someone to pay as opposed to recognising a same-sex family unit is debatable.70 In W v G a lesbian co-parent, who had co-parented two children with the biological mother for 8 years was found to be liable for lump sum child support, though she was not a ‘parent’ under s 60H, based on the principles of promissory estoppel.71 While it would have been preferable for the women in W v G to fall within the child support scheme and thus not have to rely on equitable principles to achieve what heterosexual parents achieve by contacting the Child Support Agency, the recognition given by the Court to the inter-dependence of their same-sex family unit and their joint responsibility for their children was significant, and should not be undermined by an application of principles based on biological parenthood alone.

Not surprisingly the mother and co-parent in Re Patrick, like the mother in B v J, did not want the donor father to pay child support. The parties did have some discussions about the donor father purchasing shoes and putting some money towards Patrick’s education,72 but the mother made it clear from the outset (and this evidence was not disputed by the donor father) that she did not want him to pay ‘maintenance’. The position of the mother and co-parent was that the payment of child support indicated interdependence between the mother and the donor father, and imputed to him a status in their family that they did not perceive him to have. Child support contribution on his part may also have been perceived as a negation of any contributions made by the co-parent.

If the donor father were to be a ‘parent’ under s 60H, as Guest J proposes, his subsequent liability for child support would arguably impose a heterosexual and biological model of parenting on same-sex families. The research data suggests that most lesbian couples do not intend for their sperm donor to play the role of ‘parent’ in their child’s life. To introduce child support liability in these situations would undermine the independence and boundaries of the homo-nuclear family unit.

Conclusion

Re Patrick offers the legislature and society an opportunity to address the many complex issues arising out of donor insemination arrangements within the gay and lesbian community. However, for the debate to have any practical significance it cannot be conducted within a purely biological or heterosexual framework. As Kaufman J put it so eloquently in Thomas S, ‘Ry understands the underlying biological relationships, but they are not the reality of her life’.73

Postscript

On 1 August 2002 the case of Re Patrick ended tragically when the mother and child were found dead in the family home. It was later determined that the mother had killed the child and then committed suicide. Patrick was aged 2 years and 10 months at the time of his death.

* BA/LLB (Hons) (Melb), Judicial Associate, Family Court of Australia, Melbourne Registry. Many thanks to Dr Belinda Fehlberg, Carolyn Cartwright, Linda Woo and Lucy Kirwan for their support and willingness to discuss the issues. I also wish to thank the anonymous referees for their comments. Any views expressed, or errors contained, herein are of course the author’s own.1 Re Patrick (An Application Concerning Contact) (2002) 28 Fam LR 579; FLC 93–096 (Hereafter, Re Patrick).2 Jenni Millbank argues that the inclusion of gay and lesbian families within the definition of ‘family’ is a logical goal for a community that ‘is stigmatised … precisely because of their intimate relationships’: see J Millbank, ‘Which, then, would be the “husband” and which the “wife”?’: Some Introductory Thoughts on Contesting “The Family” in Court’ (1996) 3 Murdoch University Electronic Journal of Law, para 2 (www.murdoch.edu.au/elaw/).3 See, for example, s 43(b) of the Family Law Act which states that the Family Court shall, in the exercise of its jurisdiction, have regard to ‘the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children’.4 The following legislation has extended relationships recognition in certain areas of the law to same-sex couples: Domestic Relationships Act 1994 (ACT); Statute Law Amendment (Relationships) Act 2001 (Vic); Property (Relationships) Legislation Amendment Act 1999 (NSW); Property Law Amendment Act 1999 (Qld); Acts Amendment (Lesbian and Gay Law Reform) Act 2001 (WA).5 See, eg, D Spender, Man Made Language, 3rd ed, Pandora, London, 1992 pp 163–90; D Cameron (ed), The Feminist Critique of Language Routledge, London, 1998. For a discussion of this issue in the legal context see: L Finley, ‘Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning’ (1989) 64 Notre Dame Law Review 886.6 In the past the Family Court has largely ignored lesbian partners, and has rarely recognised the non-biological mother’s role as a social parent. For example, lesbian partners have been referred to by the Court as ‘friends’ (In the Marriage of Schmidt (1979) 5 Fam LR 421, 428; FLC 90–985) or ‘companions’ (Jarman v Lloyd (1982) 8 Fam LR 878, 884), and lesbian relationships have been termed ‘associations’ (In the Marriage of Spry (1977) 3 Fam LR 11,330, 11,333). More recently in W v G (1996) 20 Fam LR 49, Hodgson J of the NSW Supreme Court acknowledged that the non-biological mother had agreed with the mother to ‘act … as a parent to the child’ and, in part, found child support liability on that basis, but gave little indication that the co-parent’s parenthood extended beyond her liability for financial support. This non-recognition or mis-recognition of lesbian relationships through language negates the lesbian experience and contributes to the invisibility of non-biological mothers.7 In an American case between two lesbian mothers and a sperm donor a similar dilemma about language arose. Interestingly, the majority, who found in favour of the sperm donor/father, referred to him as ‘the father’, while the minority referred to him as the ‘petitioner sperm donor’ or the ‘biological progenitor’: Thomas S v Robin Y, 618 NYS 2nd 356 (1994).8 The concept of psychological parenting was first developed by J Goldstein, A Freud and A Solnit, Beyond the Best Interests of the Child, Free Press, New York, 1973. This volume has since been updated: J Goldstein, A Solnit, S Goldstein and A Freud, The Best Interests of the Child: The Least Detrimental Alternative, Free Press, New York, 1996. For a discussion of the importance of recognising psychological/social parents in the context of step-families see: R Edwards, V Gillies and J McCarthy, ‘Biological Parents and Social Families: Legal Discourses and Everyday Understandings of the Position of Step-parents’ (1999) 13 International Journal of Law Policy and the Family 78.9 Re Patrick, above n 1 at Fam LR 625 (Adler), 631 (Papaleo); FLC 88,906–7 (Adler), 88,912 (Papaleo).10 Re Patrick, above n 1 at Fam LR 606; FLC 88,891.11 Re Patrick, above n 1 at Fam LR 608; FLC 88,893.12 Re Patrick, above n 1 at Fam LR 612; FLC 88,896.13 Re Patrick, above n 1 at Fam LR 584; FLC 88,873.14 Re Patrick, above n 1 at Fam LR 587; FLC 88,875–6.15 Re Patrick, above n 1 at Fam LR 587; FLC 88,876.16 Re Patrick, above n 1 at Fam LR 589; FLC 88,878.17 Re Patrick, above n 1 at Fam LR 638; FLC 88,917.18 Re Patrick, above n 1 at Fam LR 632; FCR 88,912.19 Re Patrick, above n 1 at Fam LR 632; FCR 88,912.20 Re Patrick, above n 1 at Fam LR 612; FCR 88,896.21 Re Patrick, above n 1 at Fam LR 640; FCR 88,918.22 While the donor father sought to ‘contract in’ to parenting responsibility, he had actually ‘contracted out’ of financial responsibility for Patrick via an agreement with the mother that he not pay child support. Given Fogarty J’s comments in B v J [1996] FLC 92,716 about this issue it is somewhat surprising that it did not receive any attention in the judgment.23 See, eg, B v J, above n 22 at 83,618–9. In contrast to the Australian position, the courts in America have been much more willing to uphold contracts about parenting (at least in part), usually via the equitable principle of estoppel. See, eg, Leckie v Voorhies 875 P 2d 521 (Or App 1994); Straub v Todd 626 N E 2d 848 (1994); Purificati v Paricos 545 NY S 2d 837 (A D 2 Dept 1989). For a discussion of the American cases see D Kovacs, ‘The AID Child and the Alternative Family: Who Pays? (or Mater Semper Certa Est — That’s easy for you to say!)’ (1997) 11 Australian Journal of Family Law 141 at 155–60; N Polikoff, ‘The Deliberate Construction of Families Without Fathers: Is it an Option for Lesbian and Heterosexual Mothers’ (1996) 36 Santa Clara Law Review 375 at 387–90.24 For example, see Fogarty J’s comments in B v J that: ‘The financial support of children is a matter of great public interest. The community as a whole would be adversely affected if a person were permitted to waive a “right” to seek support from a child’s parent’ (at 83,618).25 B v J, above n 22 at 83,618–9.26 Child support liability for children born via artificial insemination is dealt with by s 5 of the Child Support (Assessment) Act 1989 (Cth), which refers the Court to the definition of ‘parent’ in s 60H of the Family Law Act. For a discussion of the decision in B v J see: D Kovacs, above n 23 at 149; D Sandor, ‘Children Born from Sperm Donation: Financial Support and Other Responsibilities in the Context of Discrimination’ (1997) 4 Australian Journal of Human Rights 175.27 Family Law Act 1975 (Cth) s 60H(3).28 Family Law Regulations 1984 (Cth) Sch 6 & 7.29 B v J, above n 22 at 83,620.30 Sandor, above n 26, 178, quoted in Re Patrick, above n 1 at Fam LR 645; FLC 88,922.31 Re Patrick, above n 1 at Fam LR 645; FLC 88,923.32 This phrase has been criticised by feminists and queer theorists on the basis that it prioritises the traditional, couple-based nuclear model of family over others, and encourages lesbian women to conform to a conservative heterosexual and heterosexist model. Valorising the ‘homo-nuclear family’ also necessarily results in the exclusion of other intimate relationships such as non-cohabiting couples and non-monogamous relationships. For a discussion of this issue see: D Herman, ‘Are We Family? Lesbian Rights and Women’s Liberation’ (1990) 28 Osgoode Hall Law Journal 789; S Boyd, ‘Expanding the “Family” in Family Law: Recent Ontario Proposals on Same Sex Relationships’ (1994) Canadian Journal of Women and the Law 545; K Arnup and S Boyd, ‘Familial Disputes? Sperm Donors, Lesbian Mothers and Legal Parenthood’ in D Herman and C Stychin (eds) Legal Inversions: Lesbians, Gay Men, and the Politics of Law, Philadelphia, Temple University Press, 1995. Debate over what form relationship recognition should take is an ongoing issue in the gay and lesbian community. For discussion of this issue see: Lesbian and Gay Legal Rights Service, The Bride Wore Pink, Gay and Lesbian Rights Lobby, Sydney, 1994; Reducing Discrimination Against Same Sex Couples — Discussion Paper, Victorian Attorney-General’s Advisory Committee on Gay, Lesbian and Transgender Issues, July 2000.33 Child A (unreported judgment, 6 March 2002, Glasgow, Sheriff Duncan).34 Arnup and Boyd, above n 32 at 79.35 Australia is not alone in experiencing what some are calling ‘gender wars’ within family law. For the Canadian perspective see: M Laing, ‘For the Sake of the Children: Preventing Reckless New Laws’ (1999) 16 Canadian Journal of Family Law 229; N Bala, ‘A Report from Canada’s “Gender War Zone”: Reforming the Child Related Provisions of the Divorce Act’ (1999) Canadian Journal of Family Law 163.36 For a discussion of the impact of fathers’ rights groups on Australian family law see: M Kaye and J Tolmie, ‘Fathers’ Rights Groups in Australia and Their Engagement With Issues in Family Law’ (1998) 12 Australian Journal of Family Law 1; M Kaye and J Tolmie, ‘Discoursing Dads: The Rhetorical Devices of Fathers’ Rights Groups’ (1998) 22 Melbourne University Law Review 62.37 See, eg, the recent decision of Re McBain; Ex parte Australian Catholic Bishops Conference; Re McBain; Ex parte Attorney-General [2002] HCA 16 (18 April 2002). For a discussion of the original Federal Court decision see: K Walker, ‘Equal access to assisted reproductive services: the effect of McBain v Victoria’ (2000) 25 Alternative Law Journal 288. For a discussion of the position prior to McBain see: J Millbank, ‘Every Sperm is Sacred?’ (1997) 22 Alternative Law Journal 126.38 Family Law Act 1975 (Cth) s 65C(c).39 Re Patrick, above n 1 at Fam LR 647; FLC 88,924.40 Re Patrick, above n 1 at Fam LR 652; FLC 88,928.41 Family Law Act 1975 (Cth) s 65C(c).42 Re Patrick, above n 1 at Fam LR 634; FLC 88,913–4.43 Re Patrick, above n 1 at Fam LR 636; FLC 88,915.44 Re Patrick, above n 1 at Fam LR 641; FLC 88,919.45 Thomas S v Robin Y, 599 N Y S 2d 377, 380 (Fam Ct 1993).46 Thomas S v Robin Y, above n 45.47 Thomas S v Robin Y, above n 45.48 For a discussion of the growing importance of children’s rights in family law see: J Eekelaar, ‘The Importance of Thinking that Children Have Rights’ in P Alston, S Parker and J Seymour (eds), Children, Rights and the Law, Oxford University Press, 1992.49 Section 68F(2)(a) of the Family Law Act requires that the Court consider ‘any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes’. This is loosely based on Art 12 of the Convention on the Rights of the Child which states:

12(1) State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

(2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in manner consistent with the procedural rules of national law.

50 Re Patrick, above n 1 at Fam LR 598; FLC 88,884.51 Re Patrick, above n 1 at Fam LR 617; FLC 88,900.52 Re Patrick, above n 1 at Fam LR 600; FLC 88,886.53 Re Patrick, above n 1 at Fam LR 618; FLC 88,900.54 Re Patrick, above n 1 at Fam LR 597; FLC 88,884.55 Re Patrick, above n 1 at Fam LR 651–2; FLC 88,927–8.56 Re Patrick, above n 1 at Fam LR 651–2; FLC 88,927–8. Report of the Sydney Lesbian Parenting Conference, Sydney (2000) cited in J Millbank, Meet the Parents: A Review of the Research on Lesbian and Gay Families, prepared for the Gay and Lesbian Rights Lobby (NSW), January 2002.57 Studies in the US, UK and Canada have elicited similar results: see G Dunne, ‘Opting into Motherhood: Lesbians Blurring the Boundaries and Transforming the Meaning of Parenthood and Kinship’ (2000) 14 Gender and Society 11; Gartrell, Hamilton, Banks, Mosbacher, Reed, Sparks and Bishop, ‘The National Lesbian Family Survey Study 1: Interviews with Prospective Mothers’ (1996) 66 American Journal of Orthopsychiatry 272; Gartrell, Banks, Hamilton, Reed, Bishop and Rodas, ‘The National Lesbian Family Survey Study 2: Interviews with Mothers of Toddlers’ (1999) 69 American Journal of Orthopsychiatry 272; Gartrell, Banks, Reed, Hamilton, Rodas and Deck, ‘The National Lesbian Family Survey Study 3: Interviews with Mothers of Five Year Olds’ (2000) 70 American Journal of Orthopsychiatry 272; C Patterson, ‘Family Lives of Children Born to Lesbian Mothers’ in Patterson and D’Augelli, Lesbian, Gay and Bisexual Identities in Families, Oxford University Press, 1998; F Nelson, Lesbian Motherhood: An Exploration of Canadian Lesbian Families, University of Toronto Press, 1996.58 See, eg, C Patterson, ‘Family Relationships of Lesbians and Gay Men’ (2000) 62 Journal of Marriage and the Family 1052; M Allen and N Burrell, ‘Comparing the Impact of Homosexual and Heterosexual Parents of Children: Meta-Analysis of Existing Research’ (1996) 32 Journal of Homosexuality 19; F Tasker and S Golombok, ‘Children Raised by Lesbian Mothers: The Empirical Evidence’ (1991) Family Law 184; C Patterson, ‘Children of Lesbian and Gay Parents’ (1992) 63 Child Development 1025; R Chan, B Raboy and C Patterson, ‘Psychosocial Adjustment Among Children Conceived via Donor Insemination by Lesbian and Heterosexual Mothers’ (1998) 69 Child Development 443; S Golombok, F Tasker and C Murray, ‘Children Raised in Fatherless Families from Infancy: Family Relationships and the Socio-emotional Development of Children of Lesbian and Single Heterosexual Mothers’ (1997) 38 Journal of Child Psychology, and Psychiatry and Allied Disciplines 783.59 Polikoff, above n 23.60 Re Patrick, above n 1 at Fam LR 648; FLC 88,923. See also Kovacs, above n 23 at 154.61 Family Law Act 1975 (Cth) s 60B; Child Support (Assessment) Act 1989 (Cth) s 5.62 Re Patrick, above n 1 at Fam LR 640; FLC 88,918.63 For a discussion of the indeterminacy of the best interests principle see: R Mnookin, ‘Child-custody adjudication: Judicial Functions in the Face of Indeterminacy’ (1975) 39 Law and Contemporary Problems 226; M Fineman, ‘Dominant Discourse, Professional Language, and Legal Change in Child Custody Decision-Making’ (1988) 101 Harvard Law Review 727; J Elster, Solomonic Judgments, Cambridge, Cambridge University Press, 1989.64 Rockwell v Rockwell, (1998) 43 RFL (4th) 450 (BCCA), 460.65 For some indication of the battles that have taken place see: M Kaye and J Tolmie, ‘Fathers’ Rights Groups in Australia and Their Engagement With Issues in Family Law’ (1998) 12 Australian Journal of Family Law 1; H Rhoades, R Graycar and M Harrison, The Family Law Reform Act 1995: the First Three Years, University of Sydney and Family Court of Australia, December 2000; S Armstrong, ‘“We Told You So …” Women’s Legal Groups and the Family Law Reform Act 1995’ (2001) 15 Australian Journal of Family Law 129.66 The exception to this is single women who conceive children via artificial insemination or IVF. While single women are permitted access to assisted reproductive services in some states there have been no Family Court disputes regarding children born in such circumstances.67 This was based on Dr Adler’s recommendation.68 B v J, above n 22.69 (1996) 20 Fam LR 48. For a discussion of W v G see J Millbank, ‘An Implied Promise to Parent: Lesbian Families, Litigation and W v G (1996) 20 Fam LR 49’ (1996) 10 Australian Journal of Family Law 112.70 Jenni Millbank argued in relation to W v G that ‘at present it seems that the law is ready to “find” a lesbian co-mother part of a family in order to pay the bills, but not for any other purpose’: Millbank, above n 68 at 123–4.71 Though as Sandor argues, reliance on estoppel makes the decision in W v G much more about ‘the law of enforceable promise, developed in relation to economic loss’, than about ‘the socio-legal recognition of lesbian and gay families’: D Sandor, ‘Paying for the Promise of Co-Parenting: A Case of Child Maintenance in Disguise?’ (1996) 43 Family Matters 24 at 26.72 Re Patrick, above n 1 at Fam LR 608; FLC 88,893.73 Thomas S v Robin Y, above n 45.

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