The High Court unanimously allowed an appeal from the Full Court of the Federal Court of Australia, holding that the appellant was the legal parent of a child conceived via artificial insemination. In so doing, they found that s 79(1) of the Judiciary Act 1903 (Cth) did not pick up and apply a State Act which ruled that the appellant was “presumed” not to be a parent, when the relevant Federal Act made no provision as to the appellant’s status as a parent and evinced an intention not to limit the categories in which someone could be found to be a parent in the context of artificial insemination. To the extent that various State Acts were inconsistent, they were inoperative by reason of s 109 of the Constitution (Cth).
All parties are identified by pseudonyms. The appellant, Mr Masson had been friends with Susan Parsons for many years. In 2006 Susan Parsons conceived a child by artificially inseminating herself using Mr Masson’s donor sperm. At the time of conception, Mr Masson believed that he was fathering the child, and that he would care for and support the child. When Susan Parsons gave birth to a daughter, Mr Masson was listed on the birth certificate as the father. The child lived with Susan and her partner Margaret Parsons (who later married in New Zealand) but had a close relationship with Mr Masson and saw him frequently. He had a continuing role in the child’s financial support, health, education and general welfare.
In 2015 the Parsons decided to move to New Zealand, as Susan was originally from New Zealand and wanted to be closer to family. Mr Masson filed for a parenting order pursuant to Part VII of the Family Law Act 1975 (Cth), in which he sought shared responsibility for the child between himself and Susan Parsons, a restriction upon the Parsons from moving to New Zealand, a provision for certain rights in terms of access, and the placing of certain conditions on overseas travel and communication. The question was whether Mr Masson qualified as the legal parent of the child for the purposes of the Family Law Act.
The trial judge found that Mr Masson was not covered under any of the categories of parenthood outlined in s 60H of the Family Law Act (which dealt with children conceived via artificial insemination). While s 60H(1) provided that the sperm donor was held not to be a parent where the biological mother and the other intended parent were in a de facto relationship or married, this section did not apply to the present factual situation. This was because Susan and Margaret Parsons did not qualify as de facto partners at the time that the child was conceived, nor were they able to marry at that time (given that they were in a same-sex relationship). She also said that the categories of parent described within s 60H 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.
On appeal to the Full Court of the Family Court of Australia, it was held that Mr Masson could not be the legal parent of the child because of s 14 of the Status of Children Act 1996 (NSW). Section 14(2) provided that if a man provided sperm for the purposes of artificial insemination to a woman to whom he was not married, it was presumed that he was not the father of the child. Section 14(4) provided that this presumption was irrebuttable.
There were two judgments in the High Court: the majority (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) and Edelman J, dissenting in part, but agreeing with the eventual outcome.
Majority: the meaning of “parent” in the Family Law Act
The majority found that the Family Law Act did not define the term “parent”, that s 60H 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” (at ). There was no indication that Parliament intended “parent” to have anything other than its natural and ordinary meaning. Although s 5(1) of the Child Support (Assessment) Act 1989 (Cth) defined “parent” in the context of a child born by artificial conception procedures as “a person who is a parent of the child under section 60H of the Family Law Act” this did not mean s 60H was exhaustive. The majority concluded at  that the meaning of s 60H was “not obscure or ambiguous or readily capable of more than one interpretation.” Thus, as the primary judge and the Full Court of the Family Court had held, the purpose of the section was to expand the definition of persons who may be a parent rather than to restrict it.
Moreover, the ordinary English meaning of “parent” did not exclude sperm donor ( – ).
Edelman J did not consider this point.
A split between the majority and Edelman J: the operation of s 79(1) of the Judiciary Act
Section 79(1) of the Judiciary Act provides:
(1) The laws of each Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
The majority at  –  referred to its decision in Rizeq v Western Australia and concluded that the purpose of s 79(1) of the Judiciary Act was simply to fill a gap in the 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.
Edelman J had a different interpretation of s 79(1) of the Judiciary Act in both Rizeq and this case. He said that there were three distinct concepts relevant to the appeal:
- “Jurisdiction”: at , he discussed jurisdiction, which he said means “an authority to decide” and has three dimensions – (a) a personal dimension (the persons over whom authority could be exercised); (b) a territorial dimension (the geographical area over which authority to decided can be exercised); and (c) a subject matter dimension (what subject matter can be subject to the authority to decide).
- “The powers that can be exercised by a court to make substantive orders when there is federal authority to decide”: at . Here he was essentially discussing court orders, court sanctions and remedies, and noted that the power to make these orders was determined by jurisdiction: the scope of the court’s authority over person, place, and subject matter;
- “Laws that regulate or govern the federal authority to decide within which substantive orders are made” at . These are primarily procedural laws or evidential laws, although not always.
Edelman J then noted at  that the main difference between his judgment in Rizeq and the majority was his attitude to the second distinct concept mentioned above. He considered that laws that confer powers upon a court to make substantive orders in relation to the rights, powers, duties, and liabilities of persons are not laws that regulate or govern the federal authority to decide. However, this issue was not argued and did not need to be decided in Rizeq or this case. It did, however, inform the approach his Honour took to the appeal.
He said at  that s 79(1) assumed that the court exercises Federal jurisdiction (his first concept), but also assumed that the court had power to make substantive orders which can be exercised in relation to new and existing rights and duties (his second concept). Section 79(1) in his view was only concerned with the third concept, laws that regulate or govern the court’s authority to decide.
Unanimous (Edelman J with slightly different reasoning): the ambit of s 14 of the Status of Children Act falls outside s 79(1) of the Judiciary Act
At  – , the majority noted that while s 14 is expressed in terms of “presumptions”, presumption can mean different things. A presumption of fact, or evidentiary presumption, is an inference based on logic and common sense, which a tribunal of fact draws from basic facts, particularly circumstantial evidence. A presumption of law is a legal rule that gives additional force to some basic facts in the proof of the presumed fact, by permitting or requiring an inference from the basic facts to the presumed fact. The majority also observed that if a presumption of law is rebuttable, it is properly to be regarded as a rule of law “relating to evidence” and thus capable of being picked up by s 79(1) of the Judiciary Act. But if a presumption of law is irrebuttable, and requires an inference regardless of any competing evidence, logic or common sense, the effect is to alter a rule that would otherwise attach legal consequences to the presumed fact, as opposed to the basic facts. Moreover, if the rule is directed to the status, rights and duties of persons, the irrebuttable presumption of law is also directed to that aim. The presumptions under s 14 of the Status of Children Act were held to be rules of law determinative of parental status. They were said to apply independently of determination by a court or other tribunal, and were contrasted to provisions that regulate the exercise of jurisdiction (such as s 4 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW)). Consequently they did not fall with the ambit of “laws relating to procedure, evidence, and the competency of witnesses” within the meaning of s 79(1).
At  Edelman J disagreed with the obiter observations of the majority on s 4 of the Civil Liability Act. He noted that if this section was required to be picked up by s 79(1) of the Judiciary Act, this might create confusion if a matter was brought in another State.
However, he agreed with the majority that the so-called “presumptions” in s 14 were not laws that regulate or govern the federal authority to decide within which substantive orders are made. He continued at :
An irrebuttable presumption is an oxymoron. It is not a presumption at all. It is a rule of substantive law. A true presumption, such as that contained in s 11(a) of the Misuse of Drugs Act, arises from a standardised inference about the existence of a secondary fact based upon the probative force attributed to the presence of a primary fact. In contrast, the “irrebuttable presumption” in s 14(2) leaves “no room for judicial inquiry” as to the facts. Hence, I agree with the joint judgment on this appeal that s 14(1)-(3) of the Status of Children Act, although described as “irrebuttable” presumptions in s 14(4), are really substantive rules of law.
He considered at  –  whether whether s 14 was concerned with the general statutory rights and duties of persons (his first concept), or as inseparable from the powers of the court to make substantive orders (his second concept), but ultimately decided that it did not matter, because under either characterisation, it did not need to be picked up by s79(1) of the Judiciary Act on his view.
Unanimous: the Family Law Act “otherwise provided” and thus the Judiciary Act is not capable of applying
The majority (with whom Edelman J agreed on this point at ) held that the Family Law Act “otherwise provided” for the definition of parent to be an inclusive definition in the natural and ordinary meaning of the word. They said at :
Consequently, although ss 60G and 60H are not exhaustive of the persons who may qualify as parents of children born of artificial conception procedures, if a person does qualify as a child’s parent either under s 60G by reason of adoption, or according to s 60H, or according to ordinary acceptation of the word “parent”, it is beside the point that a State or Territory provision like s 14(2) of the Status of Children Act otherwise provides. Section 79(1) of the Judiciary Act does not operate to insert provisions of State law into a Commonwealth legislative scheme which is “complete upon its face” or where, upon their proper construction, the provisions of the Commonwealth scheme can “be seen to have left no room” for the operation of State provisions. And, as is apparent from its text, context and history, Div 1 of Pt VII of the Family Law Act leaves no room for the operation of contrary State or Territory provisions. In effect, it contains an implicit negative proposition that nothing other than what it provides with respect to parentage is to be the subject of legislation.
The majority noted at  that the Commonwealth’s legislative power under s 51(xxi) of the Constitution to legislate with respect to marriage includes power to legislate with respect to the paternity and status of children of a marriage. They discussed the legislative history of the prior equivalents to s 60H, and noted that none of the prior sections provided that a sperm donor was not a parent of a child. The first version, s 5A, did not mention the parentage of a child not born of a marriage because the Commonwealth lacked the power to legislate on that basis at that time. But then between 1986 and 1987, four States referred concurrent legislative power to the Commonwealth to legislate upon that basis. The next version of the section, s 60B, which was enacted after the referral, also did not provide that a sperm donor was not the parent of a child. The final iteration, s 60H, was also silent as to the parental status of a sperm donor. Section 60H(1) was amended in 2008 to hold that the biological father was not the child’s father where the biological mother and the other intended parent were married or in a de facto relationship, but s 60H(2) and (3) were not amended. They concluded that this was a Commonwealth legislative scheme which is “complete upon its face” and thus, for the purposes of s 79(1) of the Judiciary Act, “otherwise provide[s]”.
Unanimous: s 109 inconsistency means State laws as to status of sperm donors inoperative in this context
At  – , the majority held that because the Family Law Act “otherwise provides”, the State Acts seeking to conclusively declare the status of a sperm donor parent were inconsistent with Federal laws within the meaning of s 109 of the Constitution and were inoperative to the extent of that inconsistency. Edelman J agreed on this point at .
|High Court Judgment|| HCA 21||19 June 2019|
|High Court Documents||Masson v Parsons|
|Full Court Hearing|| HCATrans 81||17 April 2019|
|Special Leave Hearing|| HCATrans 265||14 December 2018|
|Appeal to Full Fam Ct|| FamCAFC 115||28 June 2018|
|| FamCA 789||3 October 2017|