Gear v Faraday [2015] FCCA 3165
Court: Federal Circuit Court
Judge: Henderson J
Facts: Two same-sex couples (one male, one female) initially discussed and successfully underwent IVF for the conception of a child. However, tensions arose immediately after the child’s birth, leading to difficulties between the parties. The child experienced time with both sets of parents, but the female couple expressed concerns about the fathers’ constant involvement, causing fear and anxiety. Seeking legal recognition, the mothers requested to be declared parents under Section 60H of the Family Law Act 1975 (Cth), specifically addressing artificial conception. The dispute escalated, resulting in a high level of conflict and significant mistrust between the mothers and fathers. The legal proceedings intensified the mothers’ anxiety, impacting the child, X.
Reasoning: The court recognized that the legal definition of parenthood hinges on biological ties unless explicitly excluded by law. In compliance with Section 60H of the Family Law Act 1975, the mother, having undergone artificial insemination, and her partner are legally recognized as the parent and other intended parent, superseding the biological father who donated sperm. Biological considerations do not singularly determine X’s legal parents under the Act. Section 60H explicitly allows for a declaration that a non-biological individual may be recognized as a legal parent, as is the case for the women involved. Moving on to determine parenting orders, as outlined in Section 60CC of the Family Law Act 1975, the paramount factor is the child’s best interests, focusing on the quality of parenting rather than biological parenthood. Section 61DA(1) of the Family Law Act 1975 establishes a presumption that equal shared parental responsibility is in the child’s best interests. In this context, it signifies that the mothers are recognized as X’s parents, not Mr. Gear. Regarding parenting time, the court agreed to maintain the existing time arrangement with the fathers, gradually increasing it over several years to foster trust between the parties.
To read the full judgement go to; http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2015/3165