Keywords: Family Law; parenting; artificial insemination; Family Laaw Act, section 60.

Introduction
The Family Law Act identifies children born as a result of artificial conception procedures under section 60H. The child’s parents are recognised by the following two elements:

  1. the woman was married to, or a de facto partner of, another person, that being the other intended parent; and
  1. if the intended parent provides consent to the procedure.

In the case Clarence & Crisp [2016] FamCAFC 157, a mother and her former same sex partner engaged in costly court proceedings to determine who was the rightful parent of their five year old child.

Background

 The parties commenced their de facto relationship in 2004, with the parties separating in 2011. The birth mother of the child, Ms Clarence, the Applicant, alleged that her former partner, Ms Crisp, the Respondent, had vacated the joint dwelling in March 2011, 4 months before the procedure.

The Respondent was of a different opinion, as she believed the separation date to be one month after the conception of the child. Ms Crisp had donated her eggs because she knew the importance of motherhood to the other party and had hoped for the parties to reconcile after implantation. The presiding  judge was of the opinion that:

“If the parties were in a de facto relationship on that day [of     conception] then they were both the child’s ‘parents’ for the purposes of [s 60H of] the Family Law Act 1975 … ”

In addition the court considered evidence of 850 text messages between the parties whom had exchanged their love and commitment up to the implantation of the Respondent’s eggs. Despite the parties living separately at the date of conception, they were deemed to be in a de facto relationship. Further evidence suggested that the parties remained romantic, with the respondent arguing that she continued to spend overnight stays weekly at the birth mother’s home.

Decision

Justice Berman recognised that although the parties were attempting to reconcile, though unsuccessful, did not rebut the fact that the pair were in a de facto relationship at the time of conception. For these reasons, Justice Berman ordered that the child live with the Applicant and spend time with the Respondent.

The Applicant recently appealed the decision to the Full Court alleging that Berman J had erred in law. The Full Court upheld the decision and costs were awarded.