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Family Court of Australia – R & J and Anor [2006] FamCA 1398

December 12, 2006 Leave a comment


FAMILY LAW – CHILDREN – Application by father as donor for contact to child born of artificial insemination – Child living with mother and co- parent in same-sex union – Bitterly contested applications resolved with defining of “family” and role of the donor in these circumstances – Observations made concerning status of known sperm donor and impact upon children of enduring conflict between parents – Order for costs in favour of the Independent Children’s Lawyer refused.

[Link: Court Decision]

Family Court of Australia – Re Mark: an application relating to parental responsibilities [2003] FamCA 822

August 28, 2003 Leave a comment


FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Parentage – Definition of “parent” – Parenting orders – Presumptions of parentage – Overseas orders – Relationship with each parent – Surrogacy – Surrogate agreement – Child born as result of artificial insemination – Child born to surrogate mother – Child has no biological connection to surrogate mother – Child has biological connection to applicant – Child has no biological connection to applicant’s partner – Child born in USA – Child has Australian citizenship – Applicant named on birth certificate – Gay and lesbian families

[Link: Court Decision in Full]

Categories: Legal Case, surrogacy

Family Court of Australia – Re Patrick [2002] FamCA 193


CONTACT – child born as a result of artificial insemination of one of two lesbian partners by homosexual sperm donor – contested agreement – father seeking increased contact with the child – mother and co-parent opposing order and seeking that contact be restricted to twice-yearly – whether it is in the best interests of the child to have increased contact with his father – section 68F(2) factors

PARENTING – whether the father is a ‘parent’ under the Family Law Act and Child Support (Assessment) Act – meaning of ‘family’ – nature of parenting – gay and lesbian families – Family Law Act sections 60B, 60H

[Link: Court Decision]

Family Court of Australia – In the Matter Of: B and J (Artificial Insemination) [1996] FamCA 124

November 22, 1996 Leave a comment


This is an application by B. (“the applicant”) filed on 6 May 1996 for a declaration pursuant to s.107(4)(c) of the Child Support (Assessment) Act 1989 (the “Assessment Act”) that he is not, under s.26 of that Act, “a person from whom payment of child support was entitled to be sought” for the children referred to hereafter.

Background

The relevant background may be set out briefly, and was not the subject of any dispute. In approximately November 1987 the applicant was contacted by R., with whom he had had a friendship for some years, who informed him that she wished to participate in a form of lesbian marriage ceremony with J., and that she and J. wished to have children. R. requested that the applicant provide sperm with which she would inseminate J. All three agreed that if he did so he would not under any circumstances be liable to provide financial support for the children or have any future parenting obligations with respect to them. J had, since February 1987, been divorced from her former husband.

The procedure was first carried out in December 1987. On that occasion, R. and J. attended the applicant’s residence. The applicant provided the sperm in a container, R. and J. went into another room, and R. inseminated J. with the sperm. The applicant was subsequently informed that conception had not taken place. The procedure was repeated in February 1988, and was on that occasion successful.

In April 1988 the two women participated in a form of marriage ceremony. In November 1988 J. gave birth to a son, who is now aged 7. The applicant had only intermittent contact with the women after the boy’s birth and played no parenting role in respect of him.

In approximately September 1993 the artificial insemination procedure was repeated, the applicant providing his sperm subject to the same conditions as attended the first conception. J. conceived as a result of this procedure and gave birth to a second son, in June 1994. That child is now aged two. The applicant visited J. and R. when that child was approximately six months old, but had no further substantial contact with the family and played no parenting role with respect to either child. However, with his consent, he was registered as the father of each of the children on their birth certificates.

In or about April 1995 the applicant received a letter from J. informing him that she had been instructed by the Department of Social Security that payment of her pension would cease unless she applied for child support from him. In the same month he received an assessment from the Child Support Agency indicating that he was required to pay $355.92 per month for the 1994/95 child support year. A subsequent assessment required payment of $393.58 per month for the 1995/96 year. At 19 March 1996 his child support liability stood at $6225.39. The Child Support Agency acted in accordance with the requirements of the Assessment Act in making these assessments. Section 29 of that Act states:

“(1) Subject to this section, in determining whether an application for administrative assessment of child support complies with sections 24, 25, and 26, the Registrar may act on the basis of the application and the documents accompanying the application, and is not required to conduct any inquiries or investigations into the matter.

(2) The Registrar is to be satisfied that a person is a parent of a child only if the Registrar is satisfied: …

(b) that the person’s name is entered in a register of births or parentage information, kept under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, as a parent of the child;

…”

There was a substantial time lapse between the receipt by the applicant of the first assessment and the filing of this application, but it is unnecessary to record his explanation of that, as it has no relevance to the determination of this case. The matter came before Kay J on 28 June 1996, and his Honour ordered that the proceedings be adjourned so that the Commonwealth Attorney-General and the Child Support Registrar could be invited to present argument on the issues raised. Neither elected to do so.

At the hearing before me the applicant was represented by Dr Kovacs. J. was the respondent to the application and appeared in person. She did not oppose the application. She indicated that she was contemplating the commencement of proceedings for some form of child support against R. Their relationship had ended in February 1996.

The Issue

The essential question in this case is whether the applicant is “a person from whom payment of child support was entitled to be sought for the child(ren)”, pursuant to s.26 of the Assessment Act. The question arises in that form because the applicant applied for a declaration pursuant to s.107(4)(c) of that Act that he is not such a person. Section 107 provides:

“(1) Where the Registrar accepts an application for administrative assessment of child support for a child, the person from whom the application sought payment of child support may apply to a court having jurisdiction under this Act for a declaration that the applicant was not entitled to administrative assessment of child support for the child payable by the person.

(4) If the Court is satisfied:

(c) that the person from whom the application sought payment of child support was not, under section 26, a person from whom payment of child support was entitled to be sought for the child;

the court may grant the declaration.”

The Child Support (Assessment) Act

The Child Support (Assessment) Act was passed by the Federal Parliament in September 1989. It provides a detailed administrative and judicial scheme for the financial support of children who fall within its reach. (Cases which fall within it are commonly referred to as “Stage 2” cases, while all other child support cases, which are brought under the Family Law Act, are known as “Stage 1” cases.) The effect of ss. 18 to 21 and 24 of the Assessment Act is that an “eligible child” under that Act is an unmarried child under the age of eighteen who is present in Australia or an Australian citizen or ordinarily resident in Australia on the day on which the application is made, and: was born on or after the commencing day of the Act (1 October 1989); was born before that date but whose parents separated after it; or the sibling of a child born after the commencing date.

Under the Act an “eligible carer” of a child may apply for child support from a “parent” of the child, with whom the eligible carer is not living, if the parent from whom the support is sought is resident in Australia on the day of the making of the application. The term “eligible carer” is defined in s.5 to mean a person who is the sole or principal provider of ongoing daily care for the child; or a person who has major contact with the child; or a person who shares ongoing daily care of the child substantially equally with another person; or a person who has substantial contact with the child. The expressions “major contact” and “substantial contact” are defined in s.8(3). An “eligible carer” need not be a parent of the child.

The restriction of applications under the Assessment Act to applications seeking child support from a “parent” of the child who is resident in Australia on the day the application is made is found in s. 26 of the Assessment Act, to which s.107(4)(c) makes reference. It provides:

“Application may be made to the Registrar for administrative assessment of child support for a child only if the application seeks payment of the child support from a person who is:

(a) a parent of the child; and

(b) a resident of Australia on the day on which the application is made.”

In the present case, the applicant is a resident of Australia, and was so on the day on which the mother’s application was made. Therefore, his liability for the support of the two children depends entirely on the question whether he is a “parent” of the children, and so falls within the ambit of s.26.

Ordinarily, the biological parents of a child are treated in law as the parents of the child. However, s.5 of the Assessment Act alters that position for two categories of children by providing that:

“”parent” means:

(a) when used in relation to a child who has been adopted – an adoptive parent of the child; and

(b) when used in relation to a child born because of the carrying out of an artificial conception procedure – a person who is a parent of the child under section 60H of the Family Law Act 1975;”

The effect of the use of the word “means” in that definition, rather than “includes” (or other similar expression), is, in my view, to provide an exhaustive definition within the context of the circumstances referred to, that is, of those two categories: see Sherritt Gordon Mines v. FC of T (1976) 10 ALR 441 at 455. Therefore, where the term “parent” is used in the Assessment Act in relation to a child born as a result of an artificial conception procedure, it means only a person who is a parent of a child under s.60H of the Family Law Act. For the purposes of the Assessment Act, s.60H of the Family Law Act makes exhaustive provision in this regard. Where it operates its effect is to alter the position which would otherwise operate – namely that each biological parent of a child is that child’s parent.

Section 60H of the Family Law Act

Section 60H of the Family Law Act is titled “Children born as a result of artificial conception procedures”. The definition of “artificial conception procedure” is to be found in s.60D, which states:

“”artificial conception procedure” includes:

(a) artificial insemination; and

(b) the implantation of an embryo in the body of a woman”.

Section 60H is essentially divided into three separate categories, each with a different focus.

Section 60H(1) provides:

“If:

(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to a man; and

(b) either of the following paragraphs apply:

(i) the procedure was carried out with their consent;

(ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the man;

then, whether or not the child is biologically a child of the woman and of the man, the child is their child for the purposes of this Act.”

This subsection is extended by subsection (4) which provides:

(4) If a person lives with another person as the husband or wife of the first-mentioned person on a genuine domestic basis although not legally married to that person, subsection (1) applies in relation to them as if:

(a) they were married to each other; and

(b) neither person were married to any other person.”

Subsection (1) (in combination with subsection (4)) deals with a child born as a result of any type of artificial conception procedure to a woman who is married or lives with a man in what, for convenience, I will call a subsection (4) relationship. It provides that where the woman and her husband, or subsection (4) partner, consent to the carrying out of the procedure, or under a prescribed Commonwealth, State or Territory law the child is their child, then the child is to be regarded as their child for Family Law Act purposes. There are prescribed laws under s.60H(1) in relation to each of the States and Territories except Queensland. These focus, as does (1)(b)(i), on the couple’s consent. However, as only one of the limbs of s.60H(1)(b) needs to be satisfied, a failure to prescribe a law under (ii) would be of no significance, as long as the procedure is carried out with the couple’s consent.

This is the least contentious category of s.60H. Where husband and wife, or subsection (4) partners, both consent to the carrying out of an artificial conception procedure, they are the parents of any child whose birth results from that procedure, and the donors of the genetic material, whether male or female, are implicitly (and by virtue of the legislation of some States and Territories, explicitly) to be regarded as not the parents of such a child for that purpose.

Subsection (2) deals with the legal status of a woman who gives birth to a child as a result of an artificial conception procedure where that woman is neither married nor in a subsection (4) relationship, or where the procedure is carried out without the consent of her husband or partner. It provides:

“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 the woman;

then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.”

This subsection seems designed to address the situation of ova donation, and its effect is that where a prescribed law provides that the child to whom the woman gives birth is to be treated as her child, then, regardless of the fact that the child is not her genetic child, the child is to be treated as her child for the purposes of the Family Law Act. Implicitly, in such a case, the ova donor is not to be regarded as a parent of the child.

There are prescribed laws only in relation to South Australia, the ACT and the Northern Territory which have that effect. (See later)

Subsection (3) deals with the legal status of a man who donates semen which is used by a woman who is not married or in a subsection (4) relationship, or where the insemination takes place otherwise than with the consent of the husband or partner. It provides:

“(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.”

Its effect is that where under a prescribed law of a State or Territory the child is a child of that man, the child is also to be regarded as his child under the Family Law Act. However, there are no laws prescribed under s.60H(3).

Position of the Applicant

Subsection (3) is the provision which is relevant here. The term “artificial insemination” is not defined in the Family Law Act but it clearly covers the procedures which were carried out in this case. Specifically, there is no warrant to read that term down to cover only cases of authorised insemination carried out in conformity with relevant State or Territory law (as to which see later).

Accordingly, whether the present applicant is a “parent” for the purposes of the Assessment Act turns on the words of s.60H(3) of the Family Law Act, as picked up by s.5 of the Assessment Act. Both limbs of that subsection must be satisfied; otherwise he is not a parent for that purpose. The first limb is established – the birth of children as a result of the carrying out of an artificial conception procedure. Therefore, the applicant will be a “parent” of the children, if but only if “under a prescribed law of the Commonwealth or of a State or Territory, the (children are children) of (the applicant)”. However, as mentioned earlier, there are no relevant prescribed laws. Consequently, the second limb of s.60H(3) cannot be satisfied.

At first sight it seems unsatisfactory that no prescription has been made where the legislation appears to contemplate that course. But, as Dr Kovacs pointed out, the circumstance that there are no such prescribed laws is not surprising once one examines the laws of the States and Territories with respect to the position of donors of semen in procedures for artificial insemination. The relevant Victorian provision is s.10F of the Status of Children Act 1974, which provides:

(1) Where semen is used in a procedure of artificial insemination of a woman who is not a married woman or of a married woman otherwise than in accordance with the consent of her husband, the man who produced the semen has no rights and incurs no liabilities in respect of a child born as a result of a pregnancy occurring by reason of the use of that semen unless, at any time, he becomes the husband of the mother of the child.

(2) For the purposes of sub-section (1), the rights and liabilities of a man who becomes the husband of the mother of a child so born are the rights and liabilities of a father of a child but, in the absence of agreement to the contrary, do not include liabilities incurred before the man becomes the husband of the mother.”

It should be noted that s.10A also contains provisions whose effect is similar to that of s.60H(4) of the Family Law Act in that it brings parties living together on a bona fide domestic basis within references to parties who are married.

The effect of the Victorian Act – which deals with the legal consequences of artificial insemination – is therefore to positively provide that the donor of the semen is not to incur any liability (nor to attain any rights) in relation to a child born as a result. The position is the same in all the other States and Territories, though the wording chosen to give effect to this position varies. See: Artificial Conception Act 1984 (NSW) ss.3 and 6; Status of Children Act 1978 (Qld) ss.13 and 18; Family Relationships Act 1975 (S.A.) ss. 10(a) and 10(e); Artificial Conception Act 1985 (W.A.) ss.3 and 7; Status of Children Act 1974 (Tas) s.10C; Artificial Conception Act 1985 (A.C.T.) ss.3 and 7; Status of Children Act 1978 (N.T.) ss.5A and 5F.

This uniformity of approach is far from coincidental. 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, and agreed that the legislation should provide that:

“a husband who consents to his wife being artificially inseminated with donor sperm shall be deemed to be the father of any child born as a result of the insemination;

the sperm donor shall have no rights or liabilities in respect of the use of the semen; and

any child born as a result of AID (artificial insemination by donor) shall have no rights or liabilities in respect of the sperm donor.”

The Standing Committee re-affirmed these recommendations in 1981, 1982 and 1983.

It was as a result of this agreement that legislation which is identical for relevant purposes was passed in the States and Territories, designed to provide that the semen donor would incur no liability (nor attain any rights) in respect of a child born as a result of that procedure. That is not, however, to say that State and Territory legislation authorises the carrying out of all such procedures. Separate legislation makes provision which regulates these procedures and, in some instances, criminalises unauthorised artificial insemination. For example, s.17 of the Infertility (Medical Procedures) Act 1984 (Vic.), which appears to have been breached here, provides:

“(1) A person, who is not a medical practitioner shall not carry out a procedure of artificial insemination.

Penalty: 25 penalty units or imprisonment for one year.

(2) Sub-section (1) does not apply to a person who carries out a procedure of artificial insemination in an approved hospital.”

Under the Infertility Treatment Act 1995 (Vic.), the majority of which has yet to come into operation, penalties for the carrying out of unauthorised procedures will be substantially increased. The relevant section, s.7, which has not yet come into effect, provides:

“(1) A person may only carry out artificial insemination of a woman using sperm from a man who is not the husband of the woman at a place other than a hospital or centre licensed under Part 8 for the carrying out of donor insemination if he or she-

(a) is a doctor who is approved under Part 8 to carry out donor insemination; and

(b) (a number of other requirements are met).

Penalty: 480 penalty units or 4 years imprisonment or both.

(2) A person may only carry out artificial insemination of a woman using sperm from a man who is not the husband of the woman at a place that is a hospital or centre licensed under Part 8 for the carrying out of donor insemination-

(a) if-

(i) he or she is a doctor who is approved under Part 8 to carry out donor insemination; or

(ii) the woman on whom the insemination is to be carried out is in charge of a doctor who is approved under Part 8 to carry out donor insemination; and

(b) in either case, that doctor is satisfied that the requirements (referred to in (1)(b)) have been met.

Penalty: 480 penalty units or 4 years imprisonment or both.”

That the regulation of artificial insemination – and its discouragement unless performed within the parameters of the regulatory scheme – was to be achieved by the use of criminal sanctions rather than by the imposition of liability for the support of children born as a result is illustrated by the statement of the then Minister for Health in Victoria, Mr Roper, when introducing the 1984 Bill to the Legislative Assembly on 18 April 1984 that:

“In each case the provisions make it clear that the donor of the genetic material shall not have (sic.) legal relationship with the child. In addition, honourable members will observe that proposed section 10F protects from legal liability the donor of semen where that semen is used in an AID procedure involving a single woman – that is, one who does not have an established legal or de facto relationship – or in an AID procedure where a married woman does not have the consent of her husband. Both of these procedures will be rendered unlawful by the Infertility (Medical Procedures) Bill.

The Government does not condone the practice of artificial insemination of single women by donor. Nonetheless, it recognizes that artificial insemination by donor can be effected by very simple means and away from approved hospitals. Donors who may have unwittingly provided semen used unlawfully in these ways should not be placed at risk of being regarded as the legal father of any child born as a result of such procedures. For that reason section 10F is proposed to be included. I commend the Bill to the House.”

In this light, it may be understandable why there are no prescribed laws pursuant to s.60H(3). The Attorneys-General agreed that a man who donated semen for artificial insemination – and who was not the husband or a subsection (4) partner of the woman, or a person who subsequently entered such a relationship with that woman – should not be treated as a parent of the child, with the consequences which usually attach to that position. The States and Territories so provided.

This position could not have been clarified by the prescription of s.10F of the Victorian Status of Children Act and its equivalents in the other States and the Territories under s.60H(3) because that subsection allows for the prescription of a positive (“the child is a child of a man”) but not the prescription of a negative (such as that the donor “has no rights and incurs no liabilities”). (The effect of this agreed position in the States and Territories is that in relation to children who are born as a result of artificial conception procedures in circumstances not covered by (1) there is no male parent who might exercise parental responsibilities or be subject to the liabilities of a parent. In contrast, even where State or Territory legislation provides that the donor of ova is not to be regarded as a parent of the child, there will be another person – the birth mother – who is so regarded.)

The result is that the effect of s.5 of the Assessment Act and its incorporation of the definitions contained in s.60H as an exhaustive definition for the purpose of that Act in relation to children born as a result of artificial conception procedures, is that the applicant is not a parent of the children for the purposes of that Act.

This view is supported by the recent decision of Hodgson J in the Supreme Court of New South Wales in W v. G (1996) 20 Fam LR 49. Though that case concerned the liability for child maintenance (in its non-specific sense) of the mother’s lesbian partner, and his Honour found that the partner was estopped from denying liability, his Honour also referred to the position of the biological father of the children. After referring to the definition of parent (s.5 Assessment Act) he said at 64:

“In my opinion, that definition (by using the word “means” rather than “includes”) makes it clear that, in relation to a child born in the carrying out of an artificial conception procedure, the only person or persons who satisfy the definition of parent in the Child Support Assessment Act will (so far as New South Wales is concerned) be persons who come within s.60B(1). A biological parent, who donated sperm, will not be a parent, unless caught by s 60B(1).”

(Note that prior to the enactment of the Family Law Reform Act 1995, the provisions of s.60H were to be found – in identical terms – in s.60B.)

In light of the position that applies across all the States and Territories, that paragraph may safely be read with the omission of the words “so far as New South Wales is concerned”.

I should point out that it seems clear that there is no basis in the relevant legislation for distinguishing between anonymous and known donors of semen or ova. Were it the intention of the legislature that donors of semen or ova who were known to the recipient, or were even in a form of ongoing relationship with the recipient which fell short of that required by s.60H(4), were to be treated differently from anonymous and otherwise unrelated donors, that intention could easily have been expressed. In the absence of any such indication, the conclusions which I have reached must apply equally to both categories: see W v. G, supra, at 62-63, where Hodgson J reaches the same conclusion.

Therefore, I find that the applicant is not a “parent” within s.26 of the Assessment Act. Accordingly, I will make the declaration sought by the applicant pursuant to s.107(4)(c) of that Act.

In those circumstances, it is unnecessary to deal with Dr Kovacs’ subsidiary argument that the mother is estopped from asserting in an application for child support that the applicant is a parent because the children were conceived in the context of an agreement between the applicant and J. and R. that the applicant would have no parental rights or obligations.

However, I should say that it is, in my view, untenable to suggest that an otherwise liable parent may contract out of liability for child support, or that an otherwise entitled parent may waive a “right” to assistance for the support of his or her child.

It is well established that statutory rights granted to individuals which rest upon wider principles of public policy may not be waived. As Dawson J said in Brown v. The Queen [1986] HCA 11; (1986) 160 CLR 171 at 208, a statutory right or benefit may only be waived if it is “a personal or private one and (it) must not rest upon public policy or expediency”. See the long line of authority supporting this proposition, including Great Eastern Railway Co. v. Goldsmid (1884) 9 App. Cas. 927; Wilson v. McIntosh [1894] A.C. 129; Toronto Corporation v. Russell [1908] A.C. 493; Equitable Life Assurance Society of the United States v. Reed [1973] UKHL 5; [1914] A.C. 587; Davies v. Davies [1919] HCA 17; (1919) 26 C.L.R. 348; and more recently The Commonwealth v. Verwayen [1990] HCA 39; (1990) 170 C.L.R. 394, especially per Mason CJ at 405-6.

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. The enactment itself of the Assessment Act in 1989 and the amendments made to the child support provisions of the Family Law Act in 1987 emphasise the significance of the primary responsibility of parents for the support of their children and were specifically enacted to deal with what were regarded as deficiencies in the previous position. Longstanding authority in Australia and overseas has made it clear that such is the nature of the 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.

Dr Kovacs drew our attention to some decisions in the United States of America which may suggest, at least in the context of artificial conception procedures, that parents may contract out of those rights. Whether or not those cases represent the law in that country, they have no application in Australia.

Further, while Dr Kovacs confined this submission to cases of artificial insemination, as a matter of logic it would appear to apply equally to cases where a child is born as a result of intercourse, in the context of an greement that one of the parties would bear no financial responsibility. The considerations said to give rise to an estoppel would exist regardless of the method of conception. Such agreements or representations would not be enforced in Australia.

Anomalies in both the Child Support (Assessment) Act and the Family Law Act

There are a number of issues which the structure of the relevant legislation leaves unresolved. Though they are not relevant to the present application, and though argument in this case did not address them in any detail, they are matters of importance which should be identified, as they may require further consideration.

The first is the question whether a person such as the applicant would be a “parent” within Part VII of the Family Law Act, including in relation to Stage 1 child support applications. Those provisions (Division 7 of Part VII) apply to the financial support of children in cases where the application could not be brought under the Assessment Act.

Section 66E of the Family Law Act provides:

“(1) A court having jurisdiction under this Part must not, at any time, make, revive or vary a child maintenance order in relation to a child on the application of a person (the “applicant”) against, or in favour of, a person (the “respondent”) if an application could properly be made, at that time, under the Child Support (Assessment) Act 1989 for administrative assessment of child support (within the meaning of that Act):

(a) by the applicant seeking payment of child support for the child from the respondent; or

(b) by the respondent seeking payment of child support for the child from the applicant.

(2) Subsection (1) has effect whether or not an application for administrative assessment of child support for the child has in fact been made (whether by the applicant, the respondent or another person).”

In addition to the circumstances of this case, other examples of cases where application could be made only under the Stage 1 provisions are: where the temporal requirements referred to earlier are not satisfied; where child support is being sought from a step-parent; where child support is being sought from a person not resident in Australia; and where support is sought for a child over the age of 18.

For the reasons given earlier, the application here could not be made under Stage 2, so the effect of s.66E is that a Stage 1 application is still potentially open.

Though Division 7 does not expressly limit applications for support to support sought from a “parent” of the child, the expressed objects (s.66B) and principles (s.66C) of the Division refer to the financial duties and responsibilities of the child’s parents. Section 66B(1) provides that the “principal object of this Division is to ensure that children receive a proper level of financial support from their parents”. Section 66C(1) states that “the parents of a child have, subject to this Division, the primary duty to maintain the child”.

The difficulty which arises is that it does not appear that “parent” would mean the same in a Stage 1 case as it does in a Stage 2 case. That is because it is the use in s.5 of the Assessment Act of the term “means” which confines an artificial conception procedure “parent” to a parent under s.60H of the Family Law Act. The effect of that provision, as I have said, is that where a child is born as a result of an artificial conception procedure, for the purposes of the child support legislation, only s.60H parents are parents of the children.

However, 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 a child’s parents. In the case of the Assessment Act, it is the word “means” which makes it clear that the provision is exhaustive. Prima facie, s.60H is not exclusive, and so there would need to be a specific provision to exclude people who would otherwise be parents. Relevantly here, that means the donor of the genetic material.

Second, if a semen donor could be the subject of a Stage 1 application (because not excluded by the legislation from being a parent of the child), he would, presumably, be a “parent” for all the other provisions of Part VII of the Family Law Act. This would encompass the statement of the objects and principles of Part VII in s.60B including “to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children”; and that except where contrary to the child’s best interests, a child has the right to know and be cared for by both parents, a right of contact on a regular basis with both parents, that parents share duties and responsibilities concerning the care, welfare and development of their children, and that parents should agree about the future parenting of their children.

Further, and more specifically, parental responsibilities which s.61C ascribes to a child’s parents in the absence of a court order to the contrary would reside with the donor (and the other party), until a court ordered otherwise. And, in determining the child’s best interests, the donor’s relationship with the child would need to be considered (s.68F(2)(b). I need not here refer to each of the sections in which the term “parent” is used, but these examples demonstrate the difficulty to which the legislation may lead.

Dr Kovacs submitted that if the applicant were a “parent” for Assessment Act purposes, he would also be a parent for the purposes of the general parenting provisions of the Family Law Act. That is correct, because, the Family Law Act “parent” being wider than the Assessment Act parent, any person who fell within the latter would fall also within the former. But for the reasons I have outlined, the converse would not be true. A person who is not an Assessment Act parent may still be a Family Law Act parent.

These difficulties, it would appear, would apply equally in Victoria, New South Wales, Queensland, Western Australia and Tasmania in the case of a donor of ova to a woman who is not married or in a subsection (4) relationship. That is because there is no prescribed law under s.60H(2) in any of those States which provides that the birth mother rather than the genetic mother is to be regarded as the child’s mother. The only prescribed laws pursuant to s.60H(2) are the Family Relationships Act 1975 (S.A.) ss.10b and 10c, the Status of Children Act 1978 (N.T.) ss. 5B and 5C; the Artificial Conception Act 1985 (A.C.T.) ss. 3, 4 and 6, and they provide unequivocally that the child is to be regarded as the child of the birth mother. Also, in these five States, the birth mother may not be a “parent” for Part VII purposes. However, this is a rare situation and is unlikely to be of great practical importance. It is the ease and greater frequency of artificial insemination by semen as compared to the transfer of ova which makes the former a much more common area of difficulty.

It is possible that the absence of prescription of State and Territory legislation is due to a view that, absent a contrary intention in particular legislation, the term “parent” in Commonwealth legislation is to be given the meaning ascribed to it in State and Territory legislation. Alternatively, the view may be that the 1987 referral of power by the States to the Commonwealth in respect of ex-nuptial children is to be read subject to the pre-existing State provisions on the position of a donor as parent (though this would not rectify the difficulties in relation to the Territories).

However, as the Commonwealth did not intervene in this case and as no argument was addressed to these issues, I express no views about them or any other reasons for non-prescription.

Finally, it appears to me that in this and like cases, the mother of the children would, as well as the father, not be a parent for Assessment Act purposes. Following the same path as for the applicant, s.5 of the Assessment Act refers the question to the exclusive s.60H categories. Section 60H(2) is the relevant one in the case of the mother, but in New South Wales, Victoria, Queensland, Tasmania and Western Australia there are no relevant prescribed laws.

This would not itself preclude a mother of a child born as a result of an artificial conception procedure from applying for Stage 2 child support, because such applications may be made by “eligible carer(s)” of the child and not only parents (s.25 Assessment Act). However, it would preclude the pursuit of a Stage 2 application seeking child support from her. If, in this case, on the break-up of the mother’s relationship, the children had remained in the care of the mother’s partner, the partner (here female – but equally if a male partner) would have been unable to seek Stage 2 support from the children’s own biological and birth mother who had cared for them to that point. However, the partner may have been able to seek Stage 1 child support on the basis that s.60H does not itself narrow the categories of parents.

Further, the recognition of this anomaly strengthens the view that s.60H is not an exclusive category. Were it so, the children’s mother would not be their “parent” for any of the purposes of Part VII. That would be a clearly absurd and, presumably, unintended result.

Some of these issues appear to me to require legislative clarification, including perhaps legislation which operates retrospectively. It is a reality of life that 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 these situations.

Conclusions

For the reasons stated, I will make a declaration pursuant to s.107(4)(c) of the Child Support (Assessment) Act that the applicant is not a “person from whom payment of child support was entitled to be sought” for the relevant children.

[Link: Court Decision]

Family Court of Australia – Between: X (First Appellant) Y (Second Appellant) Z (Third Appellant) and A (First Respondent) B (Second Respondent)

September 13, 1993 Leave a comment


CATCHWORDS
Family Law – Custody and Access – Findings of trial Judge as to credit and fact – Appeal – Powers and discretion of Full Court

Family Law – Custody and access – Conduct of parent – Sexual promiscuity

Family Law – Custody and access – Sexual abuse – Finding that sexual abuse had occurred

Family Law – Access – Categories of access parent – Nature of relationship with child

Family Law – Costs – Discretion Between 1979 and 1991, the first appellant (referred to in the judgment as X) was in a lesbian relationship with the first respondent (referred to as A). Throughout the relationship X’s pursuit of sexual liaisons with other women was a source of frequent tension and hostility.

In 1984, A was artificially inseminated by X, using a sperm sample provided by the second respondent, B. This was the culmination of discussions involving A, X and B between 1979 and 1984.

A gave birth to a son in March 1985. B visited the mother and child after the birth, and later maintained regular contact with the child.

B and X were married in 1987, partly to ease social circumstances for the child, partly to put X in a stronger position with respect to custody in the event of A’s death, and thirdly to help X’s ultimately unsuccessful political ambitions.

From early 1990, X’s parents , the second and third appellants, cared for the child after school four days a week. B cared for the child after school on the fifth day.

In February 1991, A left the home which the two women shared, taking the child with her. This was the culmination of a number of incidents and arguments concerning each woman’s authority over and access to the child. Between that time and the trial in August 1992, there was continued disputation between the appellants and the respondents over access to the child by X.

At the trial between the appellants and respondents over custody, guardianship and access to the child, A alleged that X had sexually abused the child from the age of one week until he was about two and a half. X denied the allegations.

The trial Judge found the allegations of sexual abuse proven, and granted guardianship and custody of the child to the respondents. The appellant’s applications for custody and access were dismissed, and they were ordered to pay one half of the respondents’ costs of the trial.

[Link: Court Decision]