SAME SEX COUPLE FIGHTS OVER RESPONSIBILITY REGARDING "THEIR" CHILDREN
Aldred & Warburg [2020] FCCA 2524 (10 September 2020)
This case involves a same sex couple where the applicant claims that she is entitled to shared responsibility over the children even when the evidence proves that the child was not a product of artificial conception but by sexual intercourse.
Facts:
Ms Aldred, the applicant, has asked the court to make a number of parenting orders in relation to two children (X and Y). The applicant sought orders for the parties to have equal shared parental responsibility for the children whereas the respondent sought an order for sole parental responsibility in her favor. The respondent, Ms Warburg, gave birth to both children. The two women were in a de facto relationship at the time the children were conceived and subsequently born and accordingly, Ms Aldred considers herself to be a mother to the children. Although Ms Warburg is supportive of the children spending time with Ms Aldred she does not consider Ms Aldred to be one their mothers.
Ms. Aldred is of the belief that Ms Warburg utilized artificial conception procedures with the assistance of a man named Mr E. Ms Warburg on the other hand gave evidence of conceiving the children by way of sexual intercourse. She said she is not sure who X’s father is, as she was at the time of her conception having sexual relationships with both Mr E and Mr G. Her evidence was that she conceived Y through sexual intercourse with Mr G. The birth certificates for the children do not contain the names of either man as the father nor do they record Ms Aldred as a parent.
Issue: Is the applicant the parent of X and Y? If not, is she entitled to shared responsibility over the children?
Law:
- 60H- Children born as a result of artificial conception procedures
- 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, or a de facto partner of, another person (the other intended parent)
- 60CC- How a court determines what is in a child’s best interests
(3)(m)- any other fact or circumstance that the court thinks is relevant.
Analysis:
Given that s.60H does not apply since each child was conceived not by artificial conception but as a result of the respondent having sexual intercourse with a man, the court is satisfied that in applying the ordinary meaning of the word “parent” to this case, X’s parents would be the respondent and either Mr E or Mr G. Y’s parents would be the respondent and Mr G.
Although the court finds that the applicant is not a “parent” for the purposes of the Act, it is satisfied in the circumstances of this case that it is appropriate to consider all of the factors set out in s.60CC(2) and (3) as if they are applicable to both parties. In doing so the court relied on s.60CC(3)(m) which requires the court to consider any other relevant fact or circumstance. The court have come to that decision because it is satisfied that both parties initially intended the applicant to be a mother to these children and acted accordingly up until separation. To exclude the applicant from the considerations relevant to parents in the circumstances would be artificial and may distort the decision-making process leading to a decision that is not in either child’s best interests.
Conclusion:
Hence, the respondent shall have sole responsibility for the children but the applicant is entitled to spend time with the children.