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05 MAR 2019

The High Court of Australia to consider the definition of “parent”

The High Court of Australia to consider the definition of “parent”

Family lawyers have another reason to keep a watchful eye on the High Court of Australia in 2019, writes Will Stidston, a special counsel and accredited family law specialist at Barry Nilsson in Melbourne.

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The High Court of Australia recently granted special leave to hear an appeal from the decision of the Full Court of the Family Court of Australia in Parsons and Anor & Masson [2018] FamCAFC 115. In summary:

  1. A child was conceived utilising artificial insemination and the father was named on the child’s birth certificate.
  2. A controversy arose between the parents as to the parentage of the child.
  3. At first instance, the Family Court of Australia held that the father was a “parent” for the purposes of the Family Law Act 1975 (Cth). The mother appealed this decision.
  4. The Full Court of the Family Court of Australia allowed the appeal and determined that the father was not a parent on the basis of s 79 of the Judiciary Act 1903 (Cth) and s 14(2) of the Status of Children Act 1996 (NSW). The father sought, and was granted, special leave to appeal this decision to the High Court of Australia as indicated above.

The High Court appeal, which will utilise the pseudonym Masson v Parsons & Ors will consider, inter alia, whether the Full Court of the Family Court of Australia erred in concluding that:

  1. s 142(s) of the Status of Children Act 1996 (NSW) operated to determine that the appellant was not a “parent” for the purposes of the Family Law Act 1975 (Cth); and
  2. s 60H of the Family Law Act 1975 (Cth) exhaustively defines parents of children for the purpose of that Act.

The decision of the High Court will no doubt be illuminating with broad application for parents utilising artificial insemination procedures.