In recent case of Groth & Banks [2013] FamCA 430, the Family Court was asked to clarify the definition of a parent under the Family Law Act (Cth) after a child was conceived by assisted reproductive technology (“IVF”). Here the Applicant was the person who supplied his genetic material and sought parenting Orders from the Court after the Mother denied his attempts to partake in parenting the child.

The Respondent Mother argued that the Applicant was not a parent at law as he had done no more than provide his genetic material for use in an artificial conception procedure. [1] The Respondent’s case can further be summarised as follows:

  • It is not sufficient for the Applicant to point to the biological link, and that the word “parent” in the Family Law Act contemplated more than the person who was the donor of genetic material[2];
  • That the Applicant therefore should not have parental responsibility for the child (however the Respondent Mother did conceded that she did not take issue to the Child spending time with the Applicant)[3]; and
  • That under section 15 of the Status of Children Act 1974 Vic, there is an irrebuttable presumption of law that if a woman becomes pregnant as a result of an IVF procedure and a child is born, the man who produced the semen is not the father of the child. [4]

In contrast the Applicant’s argued that for the purpose of Part VII of the Family Law Act (Cth), “parent” means a child’s biological parent, unless there is express provision for an alternative. The Applicant further argued that:

  • The Applicant is undoubtedly the child’s biological progenitor:
  • Part VII of the Family Law Act envisages that there are two parents, that is, the biological progenitors of the child unless they are otherwise displaced by express provisions of the Act; and finally
  • That the Status of Children Act does not have application in this case because of the inconsistencies between the State and Commonwealth Laws, the Family Law Act otherwise shall prevail as in accordance with s 109 of the Constitution.

The Court contemplated the definition of a Parent in the context of the Act and current case Law. It was held that the word parent should take its ordinary meaning with Cronin J considering the cases of Donnell v Dovey [2010] ,[5]Tobin v Tobin [1999] ,[6]and Re: Mark: An Application relating to Parental Responsibilities [2003] [7] in securing his findings. He concluded by stating importantly that:

In s 4 (1) of the Act, the word “parent” is not exhaustively defined. The section reads: ‘parent, when used in Part VII in relation to a child who has been adopted, means an adoptive parent of a child’. The definition is unhelpful where the child has not been adopted. The lack of comprehensive definition means that the word “parent” should be given its ordinary dictionary meaning. That approach is consistent with the use and obvious intention used throughout the Act …[8]

…. the interpretation of ‘parent’ in the Act allows each case to be determined on its particular facts. [9]

The fact that a child has two parents who are her or his biological progenitors permeates the language of the Act. The whole Commonwealth statutory concept as outlined in the Part VII of the Act is one in which biology is the determining factor unless specifically excluded by law…[10]

Part VII of the Act contains multiple references to the parents of the child as ‘either’ or ‘both’. These can be found at s 60B(1)(a), 60B(2)(a) and (b), 60CC(2)(a), 60CC(3)(d)(i), 61C(2), 65C(a), 66B(2), 66F(1) and 69C(2). The logical presumption which follows is that the legislature envisaged two parents when dealing with parental responsibility under the Act.[11]

The applicant fits that presumption in the Act of who is a parent. He is the biological progenitor and one of two people who set about a course of conduct with the intention of fathering a child. On the face of the language in the Act and the facts here, a logical conclusion would be that the applicant is the parent of the child. If one turns to the sections of the Act that displace biological progenitors as parents, little changes.” [12]

The court’s interpretation in this case was assisted by the fact that the Applicant wanted to have a relationship with the child and the Court otherwise distinguished this case to one where the sperm donor was unknown as “the Act does not impose obligations on an unknown person who had donated biological material”. [13]

[1] Groth & Banks [2013 FamCA 430, [ 2].

[2] Ibid [3].

[3] Ibid.

[4] Ibid [4].

[5] Donnell v Dovey [2010] FamCAFC 15.

[6] Tobin v Tobin [1999] FamCA 446

[7] Re: Mark: An Application relating to Parental Responsibilities [2003] [3]FamCA 822

[8] Groth & Banks [2013] FamCA 430 [6]

[9] Ibid [13]

[10] Ibid [14]

[11] Ibid [15]

[12] Ibid [16]

[13] Ibid [12]