By Daniel Piekarski, Senior Associate
Mr Masson had been friends with Ms Parsons for many years. In 2006 Ms Parsons conceived a child referred to as “B” by artificially inseminating herself using Mr Masson’s sperm. At the time of conception, Mr Masson believed that he was fathering B, and that he would care for and support B. When Ms Parsons gave birth to a daughter, Mr Masson was listed on the birth certificate as the father. B lived with Ms Parsons and her partner but had a close relationship with Mr Masson and saw him frequently. Mr Parsons had a continuing role in B’s financial support, health, education and general welfare.
In 2015 the Ms Parson decided to move to New Zealand to be closer to family. Mr Masson filed an Application in the Family Court. Mr Parsons sought:
1. That parental responsibility for B be shared between himself and Ms Parsons.
2. That the Parsons be restricted from moving to New Zealand.
3. Orders regarding time spent and communication with B.
The central question at trial was whether Mr Masson qualified as the legal parent of B for the purposes of the Family Law Act.
Justice Cleary heard the trial in March and April 2017 and delivered judgment in October 2017. Justice Cleary applied s60H of the Family Law Act, which is the section that deals with children conceived using artificial insemination. Justice Cleary said that the categories of parent described by s60H were intended to be expansive rather than restrictive, and thus, Mr Masson could be a parent even though he did not fit into any of the categories listed. This reasoning follows on from the decision of Justice Cronin in Groth v Banks  FamCA 430.
The appeal was heard by Justices Thackray, Murphy and Aldridge in the Full Court of the Family Court in 2018. The Full Court allowed the appeal because they agreed with the appellant that Justice Clearly had not properly considered the impact of the New South Wales legislation about children born using artificial conception. The New South Wales legislation meant that Mr Masson could not be B’s parent.
The Full Court said that s79 of the Judiciary Act required the New South Wales legislation to apply in this case.
The High Court
The majority in the High Court found that the Family Law Act did not define the term “parent”. They held that that s60H was not exhaustive of the circumstances in which someone may become a parent, and accordingly, “a court will not construe a provision in a way that departs from its natural and ordinary meaning unless it is plain that Parliament intended it to have some different meaning” There was no indication that Parliament intended “parent” to have anything other than its natural and ordinary meaning.”
The majority concluded at that the meaning of s 60H was “not obscure or ambiguous or readily capable of more than one interpretation.”
The majority in the High Court said that the purpose of s79(1) of the Judiciary Act is to fill this gap in laws which regulate matters coming before courts exercising federal jurisdiction by providing those courts with powers necessary for the hearing and determination of those matters.
In this case, there is no “gap” with respect to the definition of “parent” in the Family Law Act that allows for the operation of s79, and therefore the New South Wales legislation had no place in the determination of who is a “parent”.
The ordinary, accepted English meaning of the word “parent” is a question of fact and degree to be determined according to the ordinary, contemporary understanding of the word “parent” and the relevant facts and circumstances of the case at hand.