The Law Handbook 2024

284 Section 4: Relationships, families and young people See also ‘The Status of Known Sperm Donors under the Family Law Act’, Australia Family Lawyer , vol. 18, no. 4. When there is a dispute between the parents and donor, the paramount consideration under the FL Act is the best interests of the child. This cannot be displaced by any pre-existing agreement or understanding that the parents and donor may have entered. Recent cases indicate that if there is an existing relationship between the donor and the child, the court may make an order for the child to spend time with the donor. In light of this, same-sex prospective parents contemplating the participation of a known donor should seek family law advice before proceeding. Paternity Changes to the FL Act now allow two ways of establishing paternity: 1 under the FL Act (pt VII div 12); and 2 under the SoC Act. Parentage under the Family Law Act The FL Act establishes certain presumptions of parentage; these presumptions are rebuttable by proof on the balance of probabilities. A man is presumed to be the father of a child arising from: • marriage (s 69P); • cohabitation, or the child being born within 20 weeks of the parties separating (s 69Q); • acknowledgment of paternity by an instrument (s 69T). There is a presumption of parentage arising from: • registration of birth (s 69R); or • a court finding (s 69S); and • a declaration of parentage by the FCFCOA is conclusive evidence of parentage for all laws of the Commonwealth (s 69VA). It should be noted that the presumptions arising under these sections of the FL Act are rebuttable by proof on a balance of probabilities (s 69U(1)). Where, in a court proceeding, paternity is in dispute, the court is empowered to order a parentage testing procedure, which can include a blood or genetic test. Failure to take the test incurs no penalty but the court may draw such inferences about the refusal to take the test as appear just (s 69Y). The report on the test is admissible as evidence (s 69ZC). Parentage arising from artificial conception Under section 60H of the FL Act, the birth mother of a child artificially conceived is presumed to be the parent of that child, regardless of whether or not the child has her DNA. If the birth mother was in a marriage or de facto relationship, including a same-sex relationship, at the time of conception, then her married or de facto partner is also deemed to be a parent of the child, provided they consented to the procedure. The birth mother’s married or de facto partner is presumed to have consented to the birth mother undergoing an artificial conception procedure, unless there is evidence of the contrary on the balance of probabilities. If the donor of DNA material for a child conceived artificially is not in a marriage or de facto relationship with the birth mother, then the child is not the donor’s child (s 60H(1)(d) FL Act). However, Family Court decisions relating to applications for parental responsibility – including Re Mark [2003] FamCA 822 and Groth and Banks [2013] FamCA 430 – have found that section 60H of the FL Act does not confine the categories of person who can be deemed to be a parent of a child conceived artificially. Rather, the language of this section enlarges the categories of person who can be deemed to be a parent. In particular, if the mother is not married or in a de facto relationship at the time of conception, a sperm donor can obtain a declaration of parentage if it can be shown that he provided the sperm donation for the express intention of parenting the child ( see Groth and Banks [2013] FamCA 430, Masson v Parsons [2019] HCA 21, McAuley v Salberg [2020] FCCA 1538, and Griffin and Laidley [2021] FCCA 1515). In 2018, the Full Court of the Family Court handed down its judgment in the matter of Parsons and Masson [2018] FamCAFC 115. In this case, the motherandfather,afterseparating,agreedtoundergo IVF and raise the child (child B) as separated parents. Child B was born; the father was the biological father of this child. The mother re-partnered with a woman, they married in 2015, and conceived child C. The father was a father figure to both child B and C. Court orders were made for the father and two mothers to equally share parental responsibility, and for the father to spend substantial time with child B and C. The two mothers appealed these orders.