Co-mother is a parent: court

In the Federal Magistrates Court case of Lusito and Lusito (in which I need to disclose I was the independent children’s lawyer), one of they key issues was the legal and emotional role of the co-mother.

The mother and her partner planned to have a child. After the co-mother was unable to have a child, the couple, who lived in a de facto relationship, decided that the mother would have the child. The father was an anonymous sperm donor.

Was the co-mother a “parent” under the Family Law Act?

Federal Magistrate Purdon-Sully found that the co-mother was “deemed” to be a parent, as the threshold issue in section 60H of the Family Law Act had been met:

I find that [X] is deemed to be the child of Ms J Lusito and
Ms D Lusito within the meaning of s.60H(c) of the Act. This is because the requirements of s.60H(1)(a) and (b)(i) are made out in that:

1. Ms J Lusito is the biological mother of [X];
2. At the time of [X]’s conception Ms J Lusito was living in a de-facto relationship with Ms D Lusito, “the other intended parent” within the meaning of s.60H(1)(b)(i);

100. Both Ms J Lusito and Ms D Lusito consented to the carrying out of an artificial conception procedure;

The biological father consented to the use of his sperm in an artificial conception procedure.

But that wasn’t the end of the quest. Her Honour was concerned as to whether, despite the deeming provision of section 60H, the co-mother was in law a “parent”. Her Honour concluded that the co-mother was, as a matter of law, a “parent”. 

Her Honour stated:

58. The question of whether Ms D Lusito, the “other intended parent” under s.60H, is a “parent” for the purposes of the Part VII of the Act is, as the Full Court observed in Aldridge & Keaton [2009] FamCAFC 229 at 16, “not without some doubt.”
59. The term “parent” is not expressly defined in the Act.[11]
60. The relevance of a finding as to whether Ms D Lusito is or is not a “parent” under the Act is threefold:
    1. If Ms D Lusito is a “parent”, she would not be required to meet a threshold test under s.65C, the section of the Act that requires a person seeking a parenting order in their favour to be “a person concerned with the care, welfare or development of the child”.
       There can be no issue on the facts of this case that Ms D Lusito would not meet those criteria.
    2. In making a parenting order in [X]’s best interests I am required to follow the legislative pathway to which I have earlier referred. In that regard:
       • (i) The Full Court in Donnell & Dovey [2010] FamCAFC 15 made clear that a “non-parent” cannot be treated as a “parent” in the context of a discussion of the s.60CC considerations;
       • (ii) Section 60B(1)(a) and (d) and s.60B (2)(a) to (d) refer only to “parents”;
       • (iii) With regard to the considerations under s.60CC, the first of the primary considerations, s.60CC(2)(a) and four of the additional considerations, s.60CC(3) (c), (e), (g) and (i) refer only to the “parents” of children;
       • (iv) Sections 60CC(4) and (4A) also only refer to “parents”.
    100. With respect to the issue of “parental responsibility”:
         • (i) Section 60C refers to each of the “parents” of a child, not aged 18 years, having parental responsibility for the child;
         • (ii) Section 61DA applies a presumption of equal shared parental responsibility only to “parents”;
         • (iii) Section 65DAA requires a court to consider equal time and if not equal then substantial and significant time with a child’s “parents”.
61. Whilst attempting to navigate through the relevant parts of the Act including the relevant state legislation involves a maze of windings and turns – the legal equivalent of a “Chemin de Jerusalem” type labyrinth – I have concluded that Ms D Lusito is [X]’s “parent” for the purposes of the Act. This is because:
    1. I accept the submissions of the ICL who in a careful analysis submitted that Ms D Lusito was a “parent” under the Act. No challenge to this submission was made by Counsel for
       Ms J Lusito or Ms D Lusito.
    2. Whilst there has been no legislative amendment to address the inconsistencies in the drafting of provisions of the Act as identified in Aldridge & Keaton [2009] FamCAFC 229, following the analysis of the Full Court in that case I intend to give a purposive construction to s.60H notwithstanding the use of the words “person” and “other intended parent” as opposed to “parent”.
    100. A reading of the Revised Supplementary Explanatory Memorandum to the Family Law Amendment (De Facto Financial Matters and other Measures) Bill2008[12] and the Senate Report makes clear that the intention of the legislature was that non-biological persons who met the relevant criteria under s.60H were to be treated as a “parent” (see Aldridge (supra) at 18).
         Ms D Lusito meets the relevant criteria.
    4. The approach taken in the case law[13] leads me to conclude that Ms D Lusito should be treated as a “parent”, in particular:
       • (i) The dicta of Brown J in Re Mark [2003] FamCA 822 that s.60H did not “purport to give an exhaustive definition of “parent” but instead enlarges rather than restricts the categories of people who may be regarded as parents.”[14]
       • (ii) The dicta of Riethmuller FM in Baker & Landon [2010] FMCAfam 280 wherein His Honour, in concluding that a lesbian non-biological co-parent was a “parent” within the meaning of s.60H and the donor of genetic material was not a “parent” under the Act, went on to observe at 43 and 44, that a mere donor of genetic material, someone who had no contact with and never knew the mother (as opposed to the donor in Re Mark[supra]), could not be said to be a person who was a “parent” or someone contemplated as a person “who would have shared parental responsibility for the child” under the Act and, at 45, that the “significant duties and obligations imposed upon parents by the Family Law Act are not imposed upon an unknown person who has donated biological material in expectation (fulfilled in state law) that there would be no duties or obligations to the child.”
       • (iii) The dicta of Dessau J in Wilson and Anor & Roberts and Anor (No.2) [2010] FamCA 734 at 38 to 40, where Her Honour concluded that lesbian co-parents, having consented to the carrying out of an artificial conception procedure were the “parents” of the subject child and the donor of genetic material and his partner were not “parents” under the Act.
       • (iv) The dicta of Faulks J in Maurice & Barry [2010] FamCA 687, at 15 and 16, that whilst the “drafting may fall short of the ideal” in His Honour’s view “a purpose of construction that s.60H in combination with the Explanatory Memorandum, would suggest that s.60H at least impliedly contemplates an “other intended parent” being a “parent”.”
62. I have concluded that it would be artificial and contrary to the clear intention of the 2008 amendments to the Act and the 2010 amendments to the relevant state legislation (here, Subdivision 2A of the Status of Children Act 1978, inserted into the Status of Children Act by the Surrogacy Act 2010(Qld), which took effect on proclamation of the Act on 1 June 2010), albeit legislation not yet prescribed in the schedule in regulation 12C of the Family Law Regulations 1984), if [X]’s primary carer, Ms D Lusito, a person regarded by him as a parent for all of his life, a person regarded as such by his biological mother, was not treated as a “parent” in the analysis I am required to undertake under Part VII of the Act, an analysis designed to make orders based on a child’s best interests.[15]
63. Like Faulks J in Maurice & Barry (supra), it is difficult for me to imagine that the man on the [suburb omitted] bus (let alone the man on the ACTION Bus or Clapham Omnibus) would not view [X] as
    Ms D Lusito’s child and Ms D Lusito as [X]’s parent.