The parties were a female same sex couple who commenced a de facto relationship in 2004. The Respondent left the Appellant’s home on 21 March 2011. The Respondent was a frequent visitor to the Appellant’s home until August 2011 and the parties continued to have sexual relations and engage in social activities together until August 2011. After the Respondent left the Appellant’s home in March 2011 and prior to August 2011 the Respondent agreed to donate embryos to the Appellant and a child was born in 2012.
The trial judge found that the parties were in a de facto relationship at the time of conception of the child in July 2011 despite the fact that the couple lived separately at that time. He reviewed 850 text messaged between the parties that included exchanges expressing their love for each other. In addition, the parties identified themselves as partners on donor declarations regarding the embryos.
As a result of the trial judge’s finding that the parties were in a de facto relationship at the time of conception, the Respondent was recognised as a parent of the child under Section 60H of the Family Law Act 1975.
The birth mother appealed the Order of the trial judge however, the full court dismissed with costs the birth mother’s appeal against the parenting Order.
Of interest, the full court considered that the trial judge misdirected himself when he posed the question whether the parties had “separated”. The full court stated that it was a potentially misleading question in a case where the parties were not married and where the issue was whether a de facto relationship existed at a particular point in time. The trial judge did ultimately answer the question he was required to consider when he found that a de facto relationship endured and continued beyond the date of conception.
