Nature vs Nurture – How Important Is It To Be The “Biological” Parent?

Same sex relationships, surrogacy, sperm donation, adoption and IVF.  When the Court decides who a child should live with or spend time with just how significant is it to be the biological parent?


who is the real father

Court Decisions Regarding Parents Rights

Two recent and highly contested Court decisions regarding parenting rights have looked at the significance of being a “biological” parent in providing access and care to a child.  In one matter, the High Court overturned a previous finding and held that a sperm donor may be regarded as a parent in certain circumstances.  In another case, though a DNA test confirmed that a child was the result of an extramarital affair, the mother’s attempts of prohibiting the child’s contact with her former husband were unsuccessful.

The term “parent” is not wholly defined within the Family Law Act, and neither state nor federal laws are definitive as to whether sperm donors may automatically be considered parents.   Nevertheless, the key consideration as these cases highlight is that the wellbeing of the child is given higher consideration than any wishes of the “parents”.

Donor Dads

Recently the High Court was asked to identify the legal parents of a child conceived between a gay man (“Robert”) and his close lesbian friend (“Susan”). The two biological “parents” had been friends for 25 years and chose to have a child together by artificial insemination in 2006.

Robert had fathered the child with the intention of acting as the father, and had contributed to the child’s care, welfare, education and financial support.  The child had an “extremely positive, close and secure relationship” with Robert and he was named as the child’s father on her birth certificate.

In 2015, Susan married her partner (“Margaret”) in New Zealand. Susan and Margaret had previously had a child together through a private IVF program. Both children referred to Robert as “Daddy” and he was actively involved in both of their lives.

When the children were aged 9 and 10, Susan and Margaret attempted to move them to New Zealand. Though Robert was initially able to prevent this move, Susan and Margaret appealed successfully to the Full Court of the Family Court on the basis that the laws in most Australian states rule out sperm donors as being considered the “parent” of the resulting child.

Robert subsequently appealed to the High Court. Although Susan argued that Robert was meant to act strictly as a donor who visited occasionally, the Court found that Robert had contributed significantly to the child’s life, was viewed by the child as her father, and was a positive participant in her social and psychological parenting.

The Court also gave great weight to Robert’s intention and belief that he would be a father when he had provided his sperm, and that Margaret was not Susan’s de facto partner at the time of the child’s birth and was therefore not an intended parent.

Robert, though a sperm donor not in a relationship with the biological mother, was deemed a “parent” in the ordinary and contemporary sense of the word, and was given the right to spend time with the child as her parent.

Susan and Margaret argued that this decision gave more weight to the child’s attachment to Robert due to a societal norm that children have fathers. The Court dismissed their suggestion of “‘hetero-normative” bias as a misunderstanding of the Court’s duty of putting the best interests of the child first and preserving their most meaningful relationships.

Genetics Aren’t Everything

The matter of Maldon & Gabard demonstrated the same principle in a reverse situation.

In that case, a husband and wife had gone through multiple IVF cycles without success, until they finally achieved conception of a baby boy in 2013. They considered him to be a miracle baby and were both elated at his birth.

But the child’s conception was not a miracle at all.

The parties had separated in April 2015, after which time the “father”, or “Mr Maldon” spent regular and frequent time with the child. In September 2015, Mr Maldon undertook a DNA test which revealed that he was not the biological father of the child, and that the child was in fact a result of an extramarital affair.

Upon Mr Maldon informing the mother of this fact, the mother immediately ceased Mr Maldon’s care of the child on the basis that he was not the biological father.  It was only a year later (after being granted Court Orders) that Mr Maldon was permitted to spend supervised time with the child. The child was initially distressed at his interaction with Mr Maldon, and was not permitted to call Mr Maldon “dad”.

The mother did not wish for the child to spend any time at all with Mr Maldon, and disputed this time. The mother went as far as to remove herself and the child from Mr Maldon’s health care (provided to her free of charge) in order to distance the child from Mr Maldon.

The court found that Mr Maldon had spent a significant portion of the child’s life being known by the child in a positive manner, he had bonded with the child before he was even born, and that his desire to play a parental role in the child’s life was due to his love for the child. It was found that the mother had an almost “hysterical aversion” to Mr Maldon being involved with the child, and that her choice to remove herself and the child from the benefits of private health cover as that might have been held against her in the proceedings spoke volumes as to her lack of reason in the matter.

It was ordered that it was in the child’s best interests that Mr Maldon play a part in the child’s life. Mr Maldon was to only present himself as a friend, and would not have parental care of the child, but would have a right to access the child on set dates for court-determined spaces of time.

The Takeaway

Biological parents or not, the Court is increasingly interested in what role a person plays in a child’s life and their contributions to that child rather than what is strictly dictated by legislation. In these two cases we can see that the definition of “parent” has been interpreted by the Court in its ordinary meaning, and that it may be a person’s actions which make them a parent rather than a biological connection.

If you have questions regarding your access or parenting rights for a child, give Websters Lawyers a call on 8231 1363 or contact us here. Our experienced family law solicitors would be happy to provide you with a free first consultation to help you better understand your rights and what may be considered the best outcome for your family.


Masson v Parsons [2019] HCA 21

Maldon & Gabard [2018] FCCA 472





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