Clarence & Crisp [2016] FamCAFC 157
Court: Family Court
Judge: Thackray J, Ainslie-Wallace J, Aldridge J
Facts: Ms. Clarence (the Applicant), the birth mother, and her former partner, Ms. Crisp (the Respondent), entered into a de facto relationship in 2004 and separated in 2011. Ms. Clarence contended that Ms. Crisp left their home in March 2011, four months before the IVF procedure that resulted in Ms. Clarence becoming pregnant with an egg donated by Ms. Crisp and fertilized by an anonymous sperm donor. Ms. Crisp asserted that the separation occurred one month after the conception date. Ms. Clarence sought sole parental rights over the 5-year-old child, while Ms. Crisp sought joint rights. The court examined 850 text messages between the parties, which included expressions of love, especially leading up to July 11, 2011, the date of the egg implantation. Despite not living together at the time of conception, the Court determined that they were still in a de facto relationship, concluding that Ms. Crisp was a parent of the child.
Reasoning: The presiding judge determined that “If the parties were in a de facto relationship on that day [of conception], then they were both the child’s ‘parents’ for the purposes of [s 60H of] the Family Law Act 1975 …”
The court mandated that the child reside with the Applicant and have scheduled time with the Respondent. Ms. Clarence contested the decision in the Full Court, asserting that Berman J had made a legal error. The Full Court affirmed the initial decision, and costs were granted in favor of Ms. Crisp.
To read the full judgement go to: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCAFC/2016/157