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High Court of Australia rules in favour of biological Father

On 19 June 2019, in the decision in Masson v Parsons [2019] HCA 21 the High Court of Australia upheld a decision of the Judge at first instance that a man who was actively involved in a child’s life and who was also her biological father was her “parent”.

  1. The case involved much constitutional law but ultimately the HCA concluded that the issue of who is a “parent” can be determined within the meaning of the Family Law Act.
  2. NSW state law and the Family Law Act did not mean that the biological father was irrefutably not a parent.
  3. Who is a parent is a question of fact and degree to be determined according to the normal contemporary understanding of the word and the relevant facts and circumstances at hand.
  4. Biology is but one fact, sometimes a very important fact – but it is not the only fact.
  5. In submissions from counsel for the father, it was asserted, and the HCA did not disagree, that a ‘parent’ signifies “a social relationship to another person” and includes factors like commitment to the child, biology, and conduct before and after birth.
  6. The decision opens up the real possibility of applications to the Family Court for declarations/orders from many parents previously thought to not be parents to their children are in law their parents.
  7. It’s possible that the federal or state parliament could change the definition of parents and presumptions could apply and such parents would not be required to bring applications to the Court.
  8. Alternatively, the state and federal governments may decide to leave the issue of parentage to the discretion of the Family Court which will necessitate case by case applications to the Court.
  9. Masson was argued in the context of NSW and Federal Law in circumstances where federal law determined de facto relationships and parental declarations. The situation in WA is different in that there is a state act- The Family Court Act. This may not be a significant matter- time will tell.
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