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What does it mean to be a "parent"?

Updated: Jan 28, 2021


You are a male who has known a lady-friend for 25 years. You are both part of the LGBTI community. There is enough trust between you that the idea of raising a child is proposed. You agree. Preparations are made to privately perform an artificial insemination. Conception happens and the child is born nine months later, with your name appearing on the birth certificate. While you and your friend (now the child's mother) live some distance apart, you move to be closer to child. You volunteer to pay $150 to your friend as a form of child support. You're there for the child's major milestones: birthdays, schooling and sporting events. You go on overseas holidays with the child and they become a part of your extended family. To this day, you perform canteen duties at the child's school. When they buy a pizza pocket from you at the canteen they say,"thanks Daddy".


Would you have any hesitation in calling yourself the child's parent?


These represent the summarised facts in a long legal battle which reached the highest Court in our land, the High Court of Australia. It concerned a man's legal fight to validate his status as his child's parent. Robert had no hesitation in calling himself a parent, however his lifelong friend Susan and her partner Margaret had a different view...


What did each party want?


For one, Robert wanted a legal declaration that he was the child's parent. Robert was content for the child to continue living with Susan and Margaret, as had been the arrangement. However he wanted the child to spend time with him for 5 nights every fortnight, as well as half of the school holidays. He also did not want Susan and Margaret to permanently relocate to New Zealand with the child.


Susan wanted a declaration of parentage by replacing Robert's name with Margaret's on the child's birth certificate. Susan wanted the Court's permission for Margaret and her to move to New Zealand with the child. She also wanted several restrictions to be placed on Robert; for example, that Robert and his partner be prevented from referring to themselves as the child's "parents".


Relocation - a complicated issue in family law proceedings


How did the case progress?


The case progressed in 3 stages:


Stage 1 (October 2017): Robert is declared the child's parent and Susan and Margaret are prevented from moving to New Zealand.


Stage 2 (June 2018): Susan and Margaret successfully appeal the Stage 1 decision . The case is returned to the original Court for a re-trial with a different judge.


Stage 3 (June 2019): Robert "appeals the appeal" in the High Court and wins. The High Court determines that Robert is the legal parent and that the Stage 1 decision should stand.


Stage 1 - a taste of success


A primary issue was what Robert and Susan had originally agreed upon. Both presented different views of their original agreement. Robert was adamant that Susan knew full well his intention to be an involved parent. He submitted that he knew the effects of growing up with an abusive and neglectful father and that fact was a personal motivator for wanting the child to have an active father figure. Susan gave evidence which aimed to downplay Robert's role. She said that Robert's role was none other than a sperm donor. She said that Robert asked her in New Zealand if she still wanted him to be a sperm donor. Susan allegedly then replied that the timing wasn't right as she wanted to focus on her business and move to New Zealand. With the child's conception occurring only a few months after that conversation, the Judge concluded it was not possible for someone to change their mind that quickly, especially on such a big decision. Susan's evidence was determined to have credibility issues and ultimately Robert's account of events was accepted.


The judge determined what it means to be a parent. The biological aspect of parenthood was discussed by referring to a case of two homosexual males who entered into an agreement with an overseas surrogate mother to bear their child. One male provided his sperm, which was then combined with an anonymous donor egg to implant into the surrogate mother. In that case, it was held that the fact that the ovum was fertilised by a medical procedure and not in utero via sexual intercourse was irrelevant to the (donor) male's parental role. While providing genetic material may be a biological indicator of parenthood, there is more to being a "parent" than only that.


The judge also saw it important to look at the psychological aspect of parenthood, being the intention of the gene contributing parent. That is, it was also important to consider the mind of the person contributing the genetic material. Did they want want anything to do with the child after birth? Did they intend to raise the child and provide for them financially? These were relevant considerations when determining parentage. Robert's evidence showed that he did intend to raise the child after birth, and this was consistent with his actions during the child's lifetime.


A further issue was whether Susan and Margaret were in a defacto relationship at the time of conception. If they were, Margaret would be the child's parent under the relevant legislation. The evidence did not support this view and determined that Robert was unaware that Susan and Margaret were in a relationship at the time of conception. In fact, he was surprised to see Margaret present at one of the privately arranged attempts at conception.


In summary, Robert was declared a legal parent and his contact time with the child would continue in Australia. This was the status quo until Susan and Margaret successfully appealed and the case was brought before the Court eight months later.


Stage 2 - finicky legal questions


The main argument on appeal was that the judge applied the wrong legislation. Instead, it was argued that the Status of Children Act 1996 (NSW) should have been applied, which would have presumed Robert, a "sperm donor", NOT to be a parent. In essence, had the judge started from this (legal) position, everything that followed may have been different. These technical legal legal questions were ultimately answered in Susan and Margaret's favour.


It was ordered that the case be returned to the original Court for a re-hearing with a different judge.


Stage 3 - the High Court, coming full circle

The High Court of Australia - the end of the line


Robert "appealed the appeal" at Stage 2, which landed him on the steps of the High Court of Australia. It would be for the High Court to determine the complex legal questions raised in Susan and Margaret's appeal. In summary, the Court found that the Stage 1 judge had applied the correct legislation and reasoning to determine Robert's parentage. The High Court stressed that the evidence did not demonstrate that Robert was merely a sperm donor. That is, he was not someone who donated his genetic material to conceive a child he would later have no involvement with. Rather, the evidence was that Robert provided his semen on the understanding that he would be the child's parent.


The High Court discussed the meaning of the word "parent" in reference to a 2006 UK case. There, Baroness Hale of Richmond (the first female President of the UK Supreme Court - read more about this impressive lady here) reasoned that a person can become a natural parent in three ways: genetically, gestationally or psychologically. The Court decided that the question of parentage is one of "fact and degree". It should be answered according to the current Australian understanding of what it means to be a parent, as well as the unique circumstances of the case. Based on this, the judge's approach in Stage 1 was correct.


Summary


This case raised interesting questions, such as: Who is a parent? What characteristics define a parent? Does it matter what society thinks a parent is?


The High Court ultimately agreed with the first judge's view that "parenthood" is a holistic concept, one informed by biology and psychology. In Robert's case, it was the existence of both these elements that saw parentage determined in his favour. And rightfully so. The evidence showed him as having all the traits of being an nurturing and involved father. He had moved homes to be closer to the child, contributed financially, and the father/child relationship from all accounts was close and affectionate. These bonds extended to Robert's partner and the child's grandmother, who was a consideration in determining whether the child should relocate to New Zealand.


To this day, based on the Court's outcome, it is likely that Robert sees the child five days per fortnight and has school holiday contact time. All parties remains in Australia and the child lives primarily with Susan and Margaret, whom have parental responsibility (legal authority) for long-term decisions relating to the child. Responsibility for day-to-day decisions change depending on who the child is spending time with.


* Note: this is not a complete representation of the facts of the case. Facts have been omitted for the purpose of this blog post.


** To read the High Court judgment in full, please follow the link here.

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