24 June 2013
ByAppeared in BioNews 710
The man had separated from his former partner in 2002 but the pair remained friends. In 2007, the man was diagnosed with testicular cancer and decided to store some of his sperm. Before he was to undergo chemotherapy, his former partner suggested they have a child together but that they would remain as friends and as separate parents. The pair started IVF together in 2008, which lead to the birth of a boy in 2010.
The man, who was present at the child's birth, maintained contact with the child, visiting him regularly until his relationship with the mother broke down in 2011. Around this time his paternity was disclosed to his family, which had until then been kept a secret, and the man was also with a new girlfriend, events the judge concluded contributed to the relationship souring with the child's mother.
When the man sought to regularise his contact with the child the mother became unresponsive, effectively 'stonewalling' the man, the court heard. The man then made an application for shared parental responsibility and regular contact with the child.
The mother argued that the man was not a parent of the child and should not have a role in making decisions about the child. She submitted that she had expected to be a single parent and that the man would only have an 'avuncular role' in the child's life.
However, emphasising that each case was to be determined on its facts, Justice Paul Cronin said it was in the best interests of the child, which was of paramount consideration, to grant shared parental responsibility. The man was granted contact rights at certain intervals leading to alternate weekends and part of school holidays.
Under Victorian state law, if a woman receiving IVF has no partner then the sperm donor used is presumed not to be the legal father. However, the judge explained that, in this case, federal law superseded state provisions. Federal law on legal parentage leads to a presumption of legal parentage for biological progenitors, which was not rebutted in this case, he explained, adding that the law envisages two parents.
'It is the child's right to have the benefit of both of his parents having a meaningful involvement in his life, subject to that being in his best interest', said Justice Cronin. 'The Court should be hesitant about removing a parental responsibility just because of the communication problem'.
The judge said he was confident that both parents would act in their child's best interest and any major decisions regarding his upbringing could be brought to an independent mediator, should communication between the parties break down.
Heather McKinnon, a lawyer at Slater & Gordon, told the Herald Sun that the case was more about the child's attachment to the biological father than how he was conceived. 'The mother relinquished and allowed the child to form a relationship with the man', she said.