In my latest entry, I’d like to cover a recent Queensland case, which has far reaching implications in the area of family law – especially when it comes to the status of children. Anyone even slightly involved in the legal profession may have already guessed that the case I am speaking of is A & B v C[1].

The reason this case is of such importance, is that it has set a new precedent in Queensland.  Once it’s been used as a persuasive argument in similar matters in other Australian states, we will likely see more precedents set on a national scale. The plaintiffs in this matter were a same sex couple, who successfully sought to have themselves both recorded on the birth certificates of their two children, while the name of the father (the sperm donor) has been removed.

The two children in question were conceived in 2004 and 2006, prior to the legislative changes in Queensland’s to the Surrogacy Act[2] in 2010.  These changes enable a same sex couple to be recorded as both ‘mother’ and ‘parent’ on a child’s birth certificate. Before these changes a mother’s same sex partner was unable to be recorded on the birth certificate of the child as a parent.

The court heard that the couple (referred to as A & B) had been in a relationship for 20 years, were in a joint household together and held joint care of the two children (referred to as D & E). Justice Lyons was satisfied by this that they were a de facto couple. In 2003 they had approached the donor (referred to as C) via a gay community website and asked him if he would be willing to act as a sperm donor. He consented and, as a result, two children were conceived. However, at the time of both births there was no legislation that recognised the couple’s relationship as de facto, so B could not be recorded on the birth certificate as a parent. A was advised at the time by Centrelink that, if she did not register C as the father, it would affect any potential social security benefits that she would be otherwise eligible to receive.

On the documents filed with the court, A & B disputed the intent and desire of C to be involved in the lives of the children D & E. C stated that he had advised A he wished to have a relationship with any child born. At the time of the application C had no contact with either of the children since 2010, but had attempted to resume contact in 2013, and had begun proceedings in the Federal Circuit Court. C sought orders that, while the children were to live with A & B, he would spend time with the children and be involved in decisions regarding their care, welfare and development. While C did not oppose the initial orders by A & B, he would not consent to the orders as he felt it would adversely affect any attempts to resume his relationship with the children.

Justice Lyons gave consideration to the provisions of the Surrogacy Act which allow for same sex couples to be registered as mother and parent of any children, with no provision for the donor to have any rights or share any liabilities with regard to the children.  However when the Births Deaths and Marriages Act was considered by the court, it found that there is a counterargument that the persons so named on the birth certificate of the children are considered to be the parents. These two conflicting views were thankfully resolved by a provision of the Status of Children Act[3] which states that “If presumptions under this part are relevant in a proceeding and 2 or more of the presumptions conflict and are not rebutted, the presumption appearing to the court to be the most likely to be correct prevails.”  The Court held that in this instance A & B being the parents of the children was more likely to be the correct presumption and interpretation of the material before them.

In her decision, Justice Lyons also noted “There can be no doubt that it is important to have correct records. In the 1926 decision of M in Re v Registrar of Births

[4], McMillan CJ referred to “a duty on the part of the Registrar to keep for the public benefit a complete and accurate register”. A Register of Births, Deaths and Marriages is, as has been discussed in the NSW decisions, a register of statistical and evidential information mainly for the purposes of succession law. It is not a register of genetic material.”

In consideration of finding that the register should be complete and accurate as referred above, Justice Lyons ordered that the birth certificates of both children record A & B as the parents and that there should be no reference at all to C, thereby removing him from the records.

In light of all this however it should be noted that even though C is not listed as the parent on the birth certificate, that pursuant to the Family Law Act, a court does have provision to make orders for anyone sufficiently concerned with the well being of a child to have parenting orders granted. What this effectively means, is that any court who exercises any kind of jurisdiction under the Family Law Act is able to make orders for a child to spend time with a sperm donor/biological parent, on the proviso that the court considers this action to be in the best interests of the child. So while this case does set an important precedent for Queensland and a persuasive argument in other states, it will remain the decision of the presiding member under the Family Law jurisdiction to determine what is foremost for the development and welfare of a child, and grant a decision accordingly.

 

[1] [2014] QSC 111

[2] Surrogacy Act 2010 (QLD) s 170

[3] s30 (1) Status Of Children Act (Qld) 1978

[4] (1924) 26 WALR 115