ND v BM [2003] FamCA 469; (2003) 31 Fam LR 22
Court: Family Court
Judge: Kay J
Facts: In a lesbian relationship, two women sought a sperm donor. The birth mother informed the donor of her desire to have a child and was seeking a sperm donor. The donor volunteered, and subsequent discussions with the mother’s partner led to an agreement that he would have no legal rights to the child, and the child would remain unaware of his status. Conception occurred through vaginal intercourse. Following the child’s birth, the father executed a handwritten agreement, as requested by the mothers, stating that he had no legal rights, and in the event of the mothers’ separation, the partner would continue to support the child. Later, the mother sought court intervention to establish the father’s liability for child support. Based on a DNA test, he signed consent orders acknowledging his responsibility to support the child, without legal representation. The donor subsequently appealed, and the appeal was dismissed.
Reasoning: In child support cases, seeking leave to appeal requires demonstrating an error in the lower court. The definition of a parent in Section 5 of the Child Support (Assessment) Act 1989 (Cth) is broad, encompassing the father or mother of the child or the child’s progenitor (Tobin v Tobin [1999] FamCA 446; (1999) FLC 92-848). Except in cases of adoption and artificial conception, the law defaults to treating the biological parent as the legal parent (Re B and J [1996] FLC 92-716; (1996) 21 Fam LR 186). Agreements between parties cannot serve as a barrier to the court’s ability to make a just and equitable order. Parents cannot waive the right to seek child support from the other parent.
To read the full judgement go to: http://www.austlii.edu.au/au/cases/cth/FamCA/2003/469.htmlTop