In a majority judgment from Chief Justice Kiefel with Justices Bell, Gageler, Keane, Nettle and Gordon, the man’s appeal to be recognised as the child’s father was allowed and the child’s mother and her partner (as first and second respondents) were ordered to pay his costs for the appeal.
Lawyers Weekly has previously reported on the circumstances that gave rise to the eventual High Court appeal, whereby a man who fathered a girl in 2006 via artificial insemination on the understanding that he would be involved in the child’s upbringing, and triggered a bid to keep the child and her mothers in Australia when they planned to move to New Zealand.
In the facts of the case, the High Court noted that at the time of conception, the appellant believed that he was fathering the child and that he would, as the child’s parent, support and care for her.
It was reported that his name was entered on the child’s birth certificate as her father, and although the child lived thereafter with the first respondent and second respondent, “the appellant took his relationship with his child seriously”.
“He had and continues to have an ongoing role in her financial support, health, education and general welfare, and he enjoys what the primary judge described as an extremely close and secure attachment relationship with the child.”
The principal issue the High Court considered in its determination was whether section 79(1) of the Judiciary Act 1903 (Cth) picked up sections 14(2) and 14(4) of the Status of Children Act 1996 (NSW) and applied them to applications for parenting orders made under Part VII of the Family Law Act 1975 (Cth), “with the result that the appellant is irrefutably to be presumed not to be the father of his biological daughter”, as was the final consideration of the Full Court of the Family Court of Australia in June 2018.
Prior to that appeal, in the first instance of the situation before the court, Justice Cleary, as primary judge, had considered that “because the appellant is the biological father of the child and, unaware of any de facto relationship between the first and second respondents, provided his genetic material for the express purpose of fathering a child whom he expected to help parent by financial support and physical care, which he had since done, the appellant is a parent of the child within the ordinary meaning of the word ‘parent’ and, therefore, a parent of the child for the purposes of the Family Law Act”.
The High Court of Australia considered that section 79(1) of the Judiciary Act 1903 does not pick up sections of the Status of Children Act 1996, with sections 14(2) and 14(4) of the Status of Children Act not considered as provisions that regulate the exercise of jurisdiction.
“Part VII of the Family Law Act provides comprehensively for how the Family Court is to determine who is a parent,” the judgment read.
“It is implicit in each of the provisions that have been mentioned that the Family Law Act proceeds from the premise that the word ‘parent’ refers to a parent within the ordinary meaning of that word except when and if an applicable provision of the Family Law Act otherwise provides,” it was said.
Consideration was also given to the constitutional argument, where it was said that “division 1 of Part VII of the Family Law Act evinces an intention to be a complete statement of the law governing the subject matter to which sections 14(2) and 14(4) apply and thereby evinces a negative implication that nothing other than what the Commonwealth law provides with respect to that subject matter is to be the subject of legislation”.
“Perforce of section 109 of the Constitution, Division 1 of Part VII of the Family Law Act prevails over sections 14(2) and 14(4) of the Status of Children Act to the extent of that inconsistency,” it continued.
“In practical result, that means that the whole of sections 14(2) and 14(4) are excluded.”