McDonald Johnson Lawyers were the legal representatives for the First and Second Respondents in a case that was heard by the High Court of Australia last month in Canberra. The decision, which is yet to be delivered, will represent a landmark decision in Australian law.
The Respondents, known by their pseudonyms as Susan and Margaret Parsons, are a same sex, married couple who reside in NSW. The children of the proceedings are known by their pseudonyms as Child B, currently aged 11 years and Child C, currently aged 10 years. The Applicant is known as Robert Masson. Robert was known to Susan and Margaret prior to the birth of the children and he donated the genetic material for Child B. Child C was conceived via an artificial insemination program using genetic material from an anonymous donor. Susan Parsons is recognised as the biological and legal parent of both children. Margaret Parsons, Susan’s wife, is recognised as the legal parent of Child C.
The case originated in the Family Court of Australia in 2015 when Robert Masson filed proceedings seeking, among other things, a Declaration that he is the legal parent of Child B. Susan and Margaret opposed that Order and sought a Declaration to the effect that Susan and Margaret are the legal parents of both children.
The Family Court, at first instance, heard competing evidence from the parties as to their respective intentions prior to the birth of Child B as to who would have parental responsibility for the child. Her Honour ultimately concluded that biology was a factor in the case but the belief of Robert that he would raise a child was equally significant and that Robert was the legal parent of Child B.
Our clients, Susan and Margaret, appealed the decision to the Full Court of the Family Court. Susan and Margaret argued, among other things, that the primary Judge failed to apply the relevant law in deciding that Robert was a legal parent of Child B. Our clients were successful in their appeal, with the Full Court determining that, the correct application of the law must produce a finding that Robert is not the legal parent of Child B.
Following that decision, Robert made an Application for Special Leave to Appeal to the High Court, which was granted. The case was heard by the High Court, sitting as a full bench, on 16 and 17 April 2019 with the Commonwealth Attorney General and the Victorian-Attorney intervening in the case. Following a day and half of submissions, the Court reserved its decision and we now wait in anticipation for the delivery of the Judgment.