An Informal "Donor" Deal Can't Shut Out a Parent: Supervised Time Ordered So a Four-Year-Old Can Get to Know His Biological Father

In Wilkerson & Croxford [2026] FedCFamC2F 1063, the Court dealt with a biological father's application to be introduced to, and spend time with, a four-year-old child who did not know him, where the mother said he was a "sperm donor" who had agreed to have no involvement in the child's life ([1]–[3]). The result: by consent, the mother has sole decision-making responsibility and the child lives with her. Over her opposition, the Court ordered twelve fortnightly sessions of professionally supervised time, followed by unsupervised daytime time that builds in stages, reaching alternate weekends from age seven, all in the area where the child lives. It also ordered that the father be added to the child's birth registration (Orders 1–19; [144], [149], [154]). The important point is that a private agreement between parents about a child, even a written one, does not bind the Court. Here the mother also failed to prove the agreement she alleged, and the child's best interests, including his right to know his identity and his father, decided the case ([68], [88], [138]–[142]). All paragraph references below are to the judgment.

Why it matters: Informal, at-home conception arrangements between people who know each other are common, and many are made on a handshake. This judgment shows the risk of assuming that a verbal "no involvement" understanding settles things. The person relying on the agreement has to prove its terms. Even if they do, the Court is not bound by it, because the paramount consideration is the child's best interests ([68], [88]). The Court also made clear that withholding a child's knowledge of his father until he turns 18 can itself be a significant loss for the child ([140]–[141]).

🧩 Facts and Issues

The parties and the child

The child was four years old and lived with the mother. Paternity testing confirmed the applicant is his biological father. The child had no knowledge of him and no relationship with him ([1]). The judgment is published under a pseudonym with approval under s 114Q(2) (cover notes).
The parents had known each other since around 2007, were "mates" for years and had a casual relationship at times. They were never in a committed relationship and never planned to live together. The judge accepted that the mother wanted to be a sole parent, and that the applicant appeared to accept his involvement would be limited ([6]–[7], [69]).
The mother decided to become a sole parent through "private informal donation" rather than a clinic, and the child was conceived informally with the applicant in 2021 ([8]–[9], [56]).
Before the child was six months old, the mother brought him to see the applicant four times. The child would not remember those meetings ([11]).
In 2022 the applicant asked to visit for the child's birthday. The mother replied that she had "always said complete zero involvement or visits", and the applicant replied "that's not what was said" ([12]–[13]). The friendly relationship ended there ([14]).
The parents live about 170 km and two hours' drive apart ([25]).

The proceedings

In late 2023, Legal Aid invited the mother to mediation on the applicant's behalf, and she declined. The Court held it was not appropriate to require him to comply with the pre-action procedures ([15]).
The applicant filed in September 2024. The hearing ran over three days in June 2026 and an Independent Children's Lawyer was appointed ([16], [31], [34]).
During the hearing the parties agreed that the mother would have sole decision-making responsibility, the child would live with her, she could get a passport and travel overseas with him without the applicant's consent, and the applicant would be restrained from using illicit drugs in the child's presence or in the 24 hours before time with him ([39]–[40]; Orders 1–5).

The competing proposals

The applicant (final position): supervised time at a contact centre, then a staged increase to alternate weekends, plus information-sharing orders and being added to the birth certificate ([47]). His original proposal, which had the mother supervising and involved long car trips, was "aspirational, and in some respects impractical", and he changed his position during the hearing ([41]–[46]).
The mother: any time to be "as determined by her" ([3], [48]).
The Independent Children's Lawyer: two hours of supervised time twice a year until January 2034, and after that in line with the child's wishes ([50]).

Issues

What orders, if any, should be made for the child to spend time with the applicant ([51])?
What orders should be made about information exchange, restraints and ancillary matters ([51])?
Underlying both: what weight, if any, should be given to the "no involvement" agreement the mother alleged ([66]–[88])?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth), s 64B and s 65D(1): the meaning of "parenting order", and the power to make the parenting order the Court considers proper ([26], fn 18).
Family Law Act 1975 (Cth), ss 60CA and 65AA: the child's best interests are the paramount consideration ([27], fn 19).
Family Law Act 1975 (Cth), s 60CC(2): the six best-interests considerations, including safety, the child's views, the child's needs, each person's capacity, and the benefit of a relationship with both parents where it is safe ([27]).
Family Law Act 1975 (Cth), s 60CC(2A): the Court must consider any history of family violence, abuse or neglect, and any family violence order ([28]).
Family Law Act 1975 (Cth), s 60CG: orders must not expose a person to an unacceptable risk of family violence ([29]).
Family Law Act 1975 (Cth), ss 61CA, 61D(3) and 61DAA: consultation and the allocation of joint or sole decision-making responsibility ([30]).
Family Law Act 1975 (Cth), s 60B: the objects of Part VII, which include giving effect to the Convention on the Rights of the Child ([26], fn 18; [134]).
Family Law Act 1975 (Cth), s 68B: the injunctions about illicit substances and family violence (Orders 5 and 16).
Family Law Act 1975 (Cth), s 65Y and Australian Passports Act 2005 (Cth), s 11: the consent orders allowing the mother to get a passport and travel overseas with the child (Orders 3–4).
Family Law Act 1975 (Cth), Part VII, Division 13: contravention of parenting orders, and the narrow circumstances in which non-compliance may be excused ([151]).
Convention on the Rights of the Child, Articles 7, 8 and 9: the child's right, as far as possible, to know and be cared for by his parents, to preserve his identity and family relations, and to maintain contact with both parents unless that is contrary to his best interests ([135]–[138]).
Births, Deaths and Marriages Registration Act 1995 (NSW), ss 18 and 20: the basis for registering the applicant as the child's father (Orders 17–18; [82]).
Child Support (Assessment) Act 1989 (Cth): the judge noted that, under this Act, a donor in an informal arrangement "could be considered a parent" ([81]).
Federal Circuit and Family Court of Australia (Family Law) Rules, r 4.01(2)(f): the exemption from pre-action procedures ([15], fn 11).
Family Law Act 1975 (Cth), Part XIVB and s 114Q(2): the publication restrictions and the approval of the pseudonym (cover notes).

📌 Precedents Relied On

Keane & Keane [2020] FamCA 99 (McEvoy J), discussing Re Andrew [1996] FamCA 43; (1996) FLC 92-692: when the primary carer is anxious about the child spending time with the other parent, the Court looks at whether that belief is genuinely held and whether it will affect their caregiving. But the carer's concerns do not give them a "veto" and "may have little weight" where their caregiving capacity "will not be discernibly impaired" ([124]).
Blass & Blass [2022] FedCFamC1A 63 at [24]–[25], referring to ASIC v Hellicar (2012) 247 CLR 345 at [165]: when a party does not call a witness who could have given evidence on a contested point, the Court may infer that the witness's evidence would not have helped that party ([85], fn 65).

🧠 Analysis

Issue

Should a child who did not know his biological father be introduced to him and spend regular time with him, when the mother said the father had agreed to be a donor only and she opposed any involvement?

Rule

Best interests are paramount. The Court must consider the s 60CC(2) matters, any family violence history, and must not expose anyone to an unacceptable risk of family violence ([27]–[29]).
Private agreements do not bind the Court. A prior agreement between parents can be considered, but the Court is not bound by it. Even a written contract or parenting plan does not oust the Court's jurisdiction ([68], [88]).
Onus on the party asserting an agreement. The mother bore the onus of proving the precise terms of the oral agreement she alleged ([88]).
The primary carer's anxiety. It is relevant if genuinely held and if it will affect their caregiving, but it is not a veto ([124]).

Application

The alleged "no involvement" agreement was not proved

The mother's case was that the applicant agreed he would not be involved in the child's life, would not be on the birth certificate and would provide no support ([66]). He consistently denied this, saying it was agreed he would be acknowledged as the father and see the child on special occasions ([67]). The judge was not satisfied that the parents were "ad idem" about the terms of any agreement, and in particular about his involvement ([88]). The reasons included:

Conversations with other people prove nothing about this agreement. Much of the mother's evidence was about discussions with friends, social media groups and other donors. These were "not probative of any agreement" between her and the applicant ([70]).
The key conversation was improbable. The mother's direct evidence of any agreement was limited to one conversation at the time of conception. The judge found it "highly improbable" that the applicant was in a frame of mind to negotiate at arm's length at that moment ([71]–[72]).
The mother's own conduct pointed the other way. She sent him scan photos and newborn photos, and in the first five months brought the child to see him four times. That conduct was inconsistent with the agreement she alleged, or "at the very least" could be read by him as a signal of continuing involvement ([73]–[75]).
Requests to see the child were not harassment. The judge rejected her evidence that she took the child to see the applicant because he harassed her: "Feelings are not facts" ([74]).
A missing witness. The mother relied on what a neighbour allegedly told her the applicant had said, but did not call the neighbour. Her explanation was "entirely unconvincing", and the judge inferred his evidence would not have assisted her ([83]–[85]).
Credit. The judge found some of the mother's account of the relationship "misleading and plainly inconsistent with the evidence", including her denial to the court child expert that they had ever had any relationship ([53]). The applicant was "not a particularly good historian", but was not found to be dishonest ([52]).

The judge also explained why the matters the mother relied on were not consistent with the alleged agreement ([76]–[81]). Not attending scans or the birth fitted the casual relationship and the mother's privacy ([78]). The applicant could not be put on the birth certificate without her consent or a court order ([79]). He had never provided care because the arrangements had been "very tightly controlled" by the mother ([80]). And she had never asked him for financial support ([81]).

Even a proved agreement would not have decided the case

The judge said that "[e]ven if" consensus had been proved, the alleged contract "does not oust the jurisdiction of this court", nor does it relieve the Court of its statutory duty to make the order that is in the child's best interests ([88]; see also [68]).

Safety: the risk concerns were addressed by targeted orders

The Court worked through each risk the mother raised:

Past cannabis use. The applicant conceded past use. His urine and hair tests were negative, and there was no cogent evidence of current use. Any relapse risk was managed by the injunction ([95]–[97]).
The paternal grandfather. The mother's allegations about him were not put to him in cross-examination. He did not pose an unacceptable risk ([98]–[103]).
An old criminal history. The applicant's only convictions were from when he was 20, with nothing since. He was not an unacceptable risk because of them ([104]–[105]).
Mental health. There was "no cogent evidence" that the applicant has a mental health condition, let alone one that would put the child at risk ([106]–[107]).
The applicant's brother. An apprehended domestic violence order had been made in 2019 against the applicant's brother, for the protection of the applicant and his parents. The family had acted protectively and has no contact with him. A general injunction against exposing the child to family violence was enough, so no brother-specific order was needed ([108]–[111], [147]).
The home environment. The applicant gave little evidence about his home, and his original plan for long car trips was "naïve and not child focussed". So all time must take place in the area where the child lives unless the mother agrees otherwise ([112]–[116]).

The child's identity was central

The judge placed "significant reliance" on the court child expert's evidence about the importance of the child understanding his identity and being supported to receive accurate information about his paternity ([94], [117]). The mother's plan was to tell the child at 18 if he wanted to know ([139]). The judge's concern was that by 18 the child would already be an adult who had formed his identity without that information, and would have lost the chance of a relationship with his father during childhood ([140]–[141]). The judge also noted that the books the mother had used were written for children of anonymous donors, which did not reflect this child's situation ([118]).

The mother's anxiety was real, but not a reason to refuse time

The judge accepted that the mother was worried and had sought support during the proceedings ([128]–[129]). But:

The applicant posed no unacceptable risk ([125]).
Her fear of joint decision-making was removed by the consent order giving her sole decision-making ([127]).
She was a "devoted and attuned parent", with strong support and generally stable mental health ([129]–[130]).
She provided no professional evidence that her parenting would be affected by supervised, then gradual and local, time ([132]).

Applying Keane and Re Andrew, the Court was not satisfied her caregiving capacity would be "discernibly impaired" ([124], [133]).

Why the Court went further than the Independent Children's Lawyer

The ICL proposed only four hours a year until 2034 ([50]). The judge instead found "significant benefits" in the child developing a relationship with the applicant, who had the desire and capacity to provide love and guidance, and found the child would be safe ([142]). The applicant had completed parenting courses and had appropriate plans and family support ([121]–[122]). Young children are "curious and adaptable", so twelve supervised sessions over about six months were likely to be enough to establish a familiar relationship, followed by regular, gradually increasing time ([143]–[144]).

Some of the applicant's proposed orders were refused

Attendance at all events. He may attend the child's events only when the child is scheduled to be spending unsupervised time with him. The child "must be shielded from parental conflict" ([150]; Orders 11–13).
Illness and medical certificates. His proposed orders requiring a medical certificate before missed time, and hospital details, were refused as inviting inflexibility and conflict. Both parents must use "common sense", and the mother is expected to offer make-up time on appropriate occasions ([151]–[153]).
Injunction on the mother. This was refused because there was no evidence of family violence risk in her household ([111]).

Conclusion

The mother did not prove the "no involvement" agreement she alleged, and even if she had, it could not override the child's best interests ([88]). With the risk concerns addressed by targeted injunctions and a requirement that all time take place locally, and the mother's anxiety not shown to impair her caregiving, the benefits of the child knowing and having a relationship with his father prevailed ([142], [149]). The child will be introduced through supervised sessions at a contact centre, which the applicant pays for, then spend unsupervised daytime time that increases in stages. That reaches alternate weekends with an overnight stay from age seven, and Friday after school to Sunday from age nine. The applicant will also be registered on the child's birth certificate (Orders 6–19; [82], [144]).

🧠 Take-Home Lesson

A verbal donor agreement is not a shield. The person relying on it must prove its terms ([88]). Conversations with friends, online groups and other donors do not prove what was agreed with this person ([70]).
Even a proved agreement does not bind the Court. Parenting plans and private contracts can be considered, but the child's best interests are paramount ([68], [88]).
Conduct speaks louder than recollection. Sending scan and newborn photos and arranging visits was inconsistent with "zero involvement" ([73]–[75]).
"Feelings are not facts." Feeling harassed by requests to see a child does not make those requests harassment ([74]).
Call your witnesses. If you rely on what someone else told you, expect the Court to ask why that person was not called, and possibly draw an adverse inference ([84]–[85]).
Waiting until 18 can be too late. The Court treated a child growing up without knowing his father as a significant loss and a source of potential lifelong grief ([140]–[141]).
Parents seeking time: bring a practical, child-focused plan. That means a supervision provider, a local venue and evidence about your home. This applicant's original proposal was "aspirational, and in some respects impractical", and long car trips were "naïve and not child focussed" ([41], [45], [112]).
Practitioners: the primary carer's anxiety needs professional evidence if it is said to affect parenting capacity. Without it, concerns "may have little weight" ([124], [132]–[133]).
Support workers and McKenzie friends: for families formed through informal conception, encourage independent legal advice early. The judge noted neither parent had it, and that the arrangement left it "entirely up to each parent" to understand their rights and obligations ([119]).

"A handshake deal about a child is not a contract the Court must enforce. The child's best interests decide."

"Waiting until 18 to tell a child who his father is may mean he grows up without ever knowing him."

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