RE Patrick & the Rights and Responsibilities of Sperm Donor Fathers in Australian Family Law

RE PATRICK AND THE RIGHTS AND RESPONSIBILITIES OF SPERM DONOR FATHERS IN AUSTRALIAN FAMILY LAW JAMES MCCONVILL AND EITHNE MILLS * I ** INTRODUCTION We are in an era of rapid scientific development in the manner in which a child can be created. Society is increasingly accepting of using technology to make babies. … The most important debate is not about how we create babies but protecting their rights. At the very least, as a community we must be able to define clearly a child's parents, father, mother and family.1 The matter of Re Patrick2 was the first case in Australia, and one of the first cases in the world, to deal with the issue of whether a sperm donor has a right of contact with the child under family law. Although the sperm donor father was granted access to the child on the basis of the child’s best interests, Guest J of the Family Court of Australia also held that the sperm donor was not a ‘parent’ under the Family Law Act 1975 (Cth) (‘Family Law Act’).3 Despite the enormous significance of Re Patrick from both a legal and social perspective, there has been little commentary on the case up to this point in time.4 This is perhaps due to a very tragic set of events which followed Guest J’s order. The mother of Patrick did not handle at all well the decision by Guest J that the sperm donor was the ‘father’ of Patrick and that the father was to have four-hour fortnightly contact visits with Patrick, which would increase gradually as Patrick got older. It is understood that the mother had had psychiatric treatment since the court case to try and deal with the father’s involvement in Patrick’s life (according to press reports, the father was enjoying a healthy relationship with Patrick).5 However, the treatment did not have * ** 1 2 3 4 5 Lawyer, Allens Arthur Robinson, Melbourne; PhD (Law) Candidate, Deakin University. This article was written independently of Allens Arthur Robinson, and the views expressed in this article do not necessarily reflect the views of Allens Arthur Robinson. Lecturer, School of Law, Deakin University. J Campbell, ‘Hatching, Unmatching and Parental Responsibility' (2002) 10 Australian Health Law Bulletin 101. See Re Patrick (2002) 28 Fam LR 579. Justice Guest’s reasoning is explained below. At the time of writing, the only significant academic discussion of Re Patrick is by F Kelly, 'Redefining Parenthood: Gay and Lesbian Families in the Family Court' (2002) 16 Australian Journal of Family Law 17 (accessed via Lexis). See J Szego, ‘Battle for Boy Ends in Double Tragedy’, The Age (Melbourne), 3 August 2002, 1. 1 MCCONVILL & MILLS (2003) the desired effect, and in August 2002 the mother took her own life and the life of little Patrick (then two years old). Whilst the authors were understandably shocked and deeply upset by the mother’s action, we resolved that it was still appropriate to comment on the case and to support the decision of Guest J in Re Patrick that the sperm donor father be allowed access to the child. The authors also believe that, consistent with the best interests of a child, a known sperm donor should be regarded as a ‘parent’, and accordingly the article contains proposed amendments to Australia’s Family Law Act which would achieve this. The authors will make the argument that if the Family Law Act is to expressly recognise that a sperm donor is to have rights in relation to the child, then the sperm donor should also have responsibilities in relation to the child consistent with what is in the best interests of the child. II CHILDREN’S RIGHTS IN AUSTRALIAN FAMILY LAW Read in the abstract, the objects and principles of Part VII of the Family Law Act (titled ‘Children’) are clear and unambiguous. The objective of the provisions is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties concerning the care, welfare and development of their children. It is an accepted principle of Australian public law that international legal rules (increasingly being in the form of formal treaties) have no direct effect under domestic law until implemented through legislative action (the so-called ‘transformation’ theory).6 Accordingly, Part VII of the Family Law Act was drafted with the aim of incorporating the rules and principles contained in the 1989 UN Convention on the Rights of the Child (the ‘UN Convention’).7 The UN Convention, ratified by Australia in December 1990, recognises a broad range of children’s rights. The rights of the child do not depend on the status of the parents of that child; as equity and justice demands, they are rights accorded to children per se. Article 3(1) of the UN Convention stipulates that in actions concerning children, the best interests of the child is the paramount consideration. Article 7 indicates that, as far as possible, the child has the right to know and be cared for by his or her parents. Article 9(3) indicates that children of separated parents have a right to maintain personal relations and direct contact with both parents on a regular basis except where it is contrary to their best interests. 6 7 See Nulyarimma v Thompson (1999) 165 ALR 621; Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. This is compared to the traditional ‘incorporation’ theory that rules of international law become automatically incorporated into domestic common law. It has been suggested that the ‘incorporation’ theory may still reflect the relationship between rules of customary international law and domestic law: See T Blackshield and G Williams, Australian Constitutional Law & Theory: Commentary & Materials (Federation Press, 3rd ed, 2002) 762-3. Though it should be noted that in B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, the Full Court of the Family Court said that, while it is clear that Part VII of the Family Law Act 1975 (Cth) adopts the terms and principles of the UN Convention of the Rights of the Child, the Convention had yet to be incorporated wholesale into domestic law, and is not specifically referred to in the Family Law Act 1975 (Cth). 2 Vol 3 No 2 (QUTLJJ) Re Patrick and the Rights and Responsibilities of Sperm Donor Fathers in Australian Family Law Articles 18 and 19, respectively, require state recognition of the principle that both parents share responsibility for the development of their child and, further, the state must take appropriate legal, administrative, social and educative measures to protect children from all forms of violence and abuse. As the Full Court held in B and B: Family Law Reform Act 1995 (‘B and B’),8 the reforms made by the Family Law Reform Act 1995 (Cth) to the Children provisions contained in Part VII represent a major restatement of the law rather than simply semantics.9 Indicative of this is the lack of proprietary language in the reform act, which emphasises the concept of parental responsibility for a chi (...truncated)