In the recent case of Clarence & Crisp  Fam CAFC, the parties had been in a same sex relationship from which a daughter was born through an artificial conception method, one party provided the egg and the other party was the birth mother.
The birth mother alleged that the parties were separated at the time the birth mother underwent the conception procedure on 11 July 2011. The donor mother argued that the parties were in a de facto relationship at the time and therefore had parental rights.
Both parties conceded that they commenced the relationship in 2004 however the birth mother argued that the parties separated on 21 March 2011 when the donor mother vacated the home where the parties had been residing. The donor mother argued that although she vacated the home, the parties continued to spend 4 or 5 nights a week with each other and during the period of 6 May 2011 and 26 July 2011 approximately 850 text messages had been exchanged between the parties, the contents of some of those text messages contained loving sentiments between the parties.
The initial trial Judge found that the parties were in a de facto relationship and therefore the donor mother had parental rights. The birth mother appealed that decision and the Full Court held that the trial Judge had not erred in concluding that “the de facto relationship endured and continued beyond the date of conception” and the appeal was dismissed with an order for costs against the birth mother.
This case highlights the ambiguity of whether or not parties are in a de facto relationship and the legal rights of parents who participate in artificial conception procedures.
As with all things, it is easier to set parameters’ in place in a considered fashion. Seek advice first.
Family Law Solicitor
Koffels Solicitors & Barristers, Sydney