Masson v Parsons & Anor [2019] HCA
Court: High Court
Judges: Kiefel CJ, Bell J, Gageler J, Keane J, Nettle J, Gordon J, Edelman J
Facts: In 2006, Mr. Masson, the appellant, provided semen to Ms. Parsons, the first respondent, for the purpose of artificial insemination. At the time of conception, Mr. Masson believed he was the father of the child and committed to supporting and caring for her. His name was included on the child’s birth certificate as the father. Despite the child residing with Ms. Parsons and her de facto partner (referred to as “the second respondent”), Mr. Masson maintained an ongoing role in the child’s financial support, health, education, and overall well-being. The primary judge characterized the relationship between Mr. Masson and the child as an extremely close and secure attachment.
In 2015, the first and second respondents decided to relocate overseas with the child. In response, Mr. Masson initiated legal proceedings in the Family Court of Australia under the Family Law Act. Among the sought orders was the establishment of shared parental responsibility between himself and the first and second respondents. Section 60H of the Act delineates rules regarding the parentage of children conceived through artificial conception procedures.
Reasoning: During the initial hearing in the Family Court, the primary judge acknowledged that, according to Section 60H, the appellant did not meet the criteria to be classified as a parent. However, the judge determined that since the provision broadened the scope of individuals who could be considered parents rather than limiting it, and considering the appellant’s role as a parent in the conventional sense, the appellant was recognized as a parent for the purposes of the Act.
On appeal, the Full Court of the Family Court concurred that Section 60H was not exhaustive. However, it asserted that, as the matter fell within federal jurisdiction, Section 79(1) of the Judiciary Act 1903 (Cth) incorporated and applied Section 14 of the Status of Children Act 1996 (NSW), wherein the appellant was irrefutably presumed not to be the child’s parent.
The High Court unanimously allowed an appeal from the judgment of the Full Court of the Family Court of Australia regarding parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The majority of the High Court determined that Section 79(1) of the Judiciary Act did not encompass and apply Sections 14(2) and 14(4) of the Status of Children Act. This was because the presumption in Sections 14(2) and 14(4) functioned as a legal rule determining parental status independently of court or tribunal actions, in contrast to provisions regulating jurisdiction exercise. The majority further held that even if Sections 14(2) and 14(4) were provisions governing the exercise of State jurisdiction, they could not be embraced by Section 79(1) of the Judiciary Act, as the Act had “otherwise provided” within the meaning of Section 79(1). Moreover, since the criteria for contrariety under Section 79(1) of the Judiciary Act and Section 109 of the Constitution were identical, Sections 14(2) and 14(4) did not constitute a part of the unified body of law operative throughout the Commonwealth and therefore did not inherently apply in federal jurisdiction as a valid law of New South Wales. Finally, the majority held that no grounds had been presented to question the primary judge’s conclusion that the appellant was a parent of the child.
To read the full judgement go to: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCATrans//2019/81.html