Mother Opposes Sperm Donor's Claim over Child
Griffin & Laidley [2021] FCCA 1515 (20 July 2021)
The respondent decided to undergo insemination. Her gay friend, the applicant, became the sperm donor for her. When their friendship ceased because of disagreement related to parenting arrangements, the respondent alleged that the applicant is not a parent of the child. The Court relied on the relevant material on the digital court file, the written submissions of the parties, and Family Law Act 1975 (Cth)in adjudicating this dispute.
Facts:
In 2019 the respondent attended upon an appointment with her gynaecologist about having a child who suggested that the respondent ask a gay friend to be a sperm donor as one of the options for pregnancy. The applicant provided the respondent with semen in a specimen jar and the respondent inseminated herself. The parties continued in their friendship and informed others as to the pregnancy and the applicant having donated his sperm. In 2020 the applicant spoke to the respondent about wanting equal time with the child.
Their friendship ceased as the respondent alleged that they did not agree upon equal time. Respondent's messages became unanswered. In 2020 the child X was born with the respondent not informing the applicant as to the child’s birth although the applicant had telephoned the respondent multiple times. The applicant filed parenting proceedings seeking final orders whereby the parties have equal shared parental responsibility for the child and the child live week about with each party and interim orders for a location order, for the parties to attend family dispute resolution, for the parties to have equal shared parental responsibility for the child, for the child to live with the respondent and for the child to spend supervised time with the applicant at B Contact Centre.
Issue:
Whether or not the applicant is a parent and therefore able to seek parenting orders in respect to the child.
Applicable law:
Family Law Act 1975 (Cth) ss 65C, 60G, 60H, 69ZL, Pt VII - provides that a parenting order may be applied for by either or both of the child's parents, by the child, a grandparent of the child, or any other person concerned with the care, welfare of development of the child.
The Court must make its findings according to undisputed facts and circumstances of the matter together with the evidence.
In Masson v Parsons [2019] HCA 21, the Court dealt with the issue of whether state law provides an irrebuttable presumption that a biological child conceived by a fertilisation procedure is not the father of the child. It was ultimately held that section 60H and section 60G Family Law Act 1975 are not exhaustive and therefore the state legislation presumption does not apply
Analysis:
The applicant always held and continues to hold the expectation that he will be involved with the child. The respondent informed the applicant of her pregnancy. The parties jointly informed others that the respondent was pregnant and the applicant was the biological father. The parties attended ultrasounds together and shared in the news that the child was a boy. The respondent initially kept the applicant informed as to the progress of her pregnancy.
The parties discussed in banter the naming of the child. It was the intention of the applicant as the biological father to be involved to some level in the parenting of the child after the child’s birth and that this expectation was initially fed into and supported by the respondent.
Conclusion:
The Court ordered that the applicant is the parent of X born in 2020. Within 21 days from the date of the Orders, the respondent should file and serve an amended response setting out the parenting orders sought by the respondent on an interim and final basis. The parties shall attend a Child Dispute Conference with Family Consultant Ms C or such other Family Consultant as nominated by the Senior Family Consultant of the Federal Circuit Court of Australia, Brisbane at 9:00am on 15 September 2021 at the Family Law Courts, Level 2, 29-31 Molesworth Street, Lismore.
