The fight for access to a little girl that went all the way to the High Court

Updated

It seemed like the perfect plan.

Susan Parsons* would fulfil her wish to raise a child, and her old friend Robert Masson* would help her to do it by providing his sperm, on the condition he could play a role in the baby's life.

But the fact Susan Parsons and Robert Masson are false names, assigned by the Family Court, reflects the long and bitter legal fight that followed.

The saga ended in a High Court decision that could shake up Australia's family law system — that a sperm donor had parental rights.

At the centre of the legal posturing, which saw a friendship disintegrate and cost over $1 million, was a simple question: Could a sperm donor, in the right circumstances, actually be a legal father?

Everyone in this story has a different idea about where it all went wrong, but all agree that the first few years were positive.

By Susan's account, she had just met a new partner, known as Margaret, and her desire for a child had been rekindled.

Robert would later tell a court he had no relationship with his own father due to his abuse and alcoholism, and his disinterest in his children.

He said it was because of this he wanted to be present in his daughter's life.

"The agreement we made with him was that he would be a donor and that he would be known to the child, especially if the child wanted to know their origins," Susan said.

"He told us that he was going to be working in China for a number of years and that was the understanding that we had, that he would be in China and then if he came back and happened to be with family members in Newcastle he was more than welcome to come and visit and have that type of interaction with the child."

As it turned out, Robert never went to China, and instead moved to Newcastle, where he went on to play a big role in the girl's life.

"I thought it was a really lovely arrangement," Susan said.

"He would offer to … take her for a walk, in small interactions at first.

"He travelled extensively overseas for very likely the first six or seven years.

"The arrangement we had was at our discretion, and we facilitated a relationship with the two."

Susan's wife Margaret said she was supportive of the "personable" Robert's plan to know the young girl.

"I believe that fundamentally a child has a right to know their biological parents," she said.

Susan and Margaret later had a second daughter with a different donor, this time obtained through a clinic.

They had discussed with Robert the prospect of him also donating to conceive the second girl, but court documents show an agreement could not be reached.

Nonetheless both girls spent time with Robert and his family, which Susan and Margaret encouraged.



To the girls, Robert was known as "daddy".

"We wanted to keep the girls together because we've grown up as a family unit and they've only ever lived with us and it made sense for the girls to keep that unity together," Susan said.

But in 2014 Margaret was diagnosed with bowel cancer, and the pair decided to fulfil their long-term plan to move to New Zealand.

Robert took legal action to stop the move, out of fear he would lose access to the children he had become attached to.

Margaret also took it hard.

"Probably the week after my diagnosis, which was a big shock, he then started hassling us for more time with the children, it was a very bad time," she said.

The good days were over.

'Why is it happening to us?'

Three years later, after the deteriorating relationship went to the Family Court, Justice Margaret Cleary found in Robert's favour — he was the legal father, and had the power to restrain the family from moving to New Zealand.

Justice Cleary found the women could not prove they were in a relationship at the time the first child was conceived and that Robert, not Margaret Parsons, was the legal parent.

The court ordered the children live with Susan and Margaret and that both spend five days a fortnight with Robert.

Throughout the court proceedings all three were complimented on their parenting, and the fact they had protected the girls from the discord in their lives.

However there were moments where the children were confronted by the tensions.

Before the first court judgement, Margaret, Susan and the girls were stopped by Australian Federal Police as they attempted to leave to country on a trip to New Zealand, where their daughters would be flower girls at a family wedding.

"[The police] said we only want to speak to the mother," Margaret said.

"The girls started crying because they thought we were in trouble and it was horrific."

Robert had placed the girls on a list that restricted their removal from Australia two months earlier.

Justice Margaret Cleary found it had been a misunderstanding and that Robert had believed the order had been superseded by a court order allowing the trip.

The women said the girls also eventually became aware of the High Court case and that some children at their school had asked about it.

"One of the girls has asked 'why is it happening to us?'," Susan said.

"That's part of the reason that we have had to talk to them about what they've seen in the media and what they've heard."

The mothers appealed the Family Court ruling and won, but that was quickly challenged in the High Court, which in June settled the matter permanently: Robert was the older girl's legal father.

'My advice: Don't do it'

While the High Court ruling made legal history, nothing much changed for those whose lives were at stake, except for making them much poorer.

Susan and Margaret have had to move into a much smaller home, and make do in diminished circumstances.

"I think after about $800,000 we stopped counting," Susan said.

She said the couple had just received the bill for costs in the High Court, requesting an additional $350,000.

"There is more proposed action to take us back to court to get compensated for the court of appeal," Susan said.

Lawyer Stephen Page, who specialises in family and fertility law from his practice in Brisbane, said the extraordinary cost was a stark lesson for families in a similar situation.

"I would urge people … to think 'if it goes wrong, I might be spending that kind of money'," he said.

Mr Page said informal agreements like the one in the Parsons and Masson case were very common, particularly among the lesbian community.

"My usual advice is don't do it," he said.

"Go to a clinic and have a clinic-recruited donor, that's certainly the lowest risk."

But he said, for those determined to take on parenthood in a more personal way, there were options.

He said everyone involved needed to talk it through thoroughly, and undertake counselling about who would perform what role.

Whatever the agreement, Mr Page said it must be put in writing.

"Go to a lawyer, get the lawyer to prepare it, don't get something off the internet, make sure you get it do it right and have clarity of terms," he said.

"It shouldn't have any vagueness about it. It should be crystal clear what everyone's agreed to."

Mr Page said the High Court ruling would shake up family law.

"I think this High Court ruling has really clarified the law about who is and who isn't a parent," he said.

"It's a really simple test if you look, smell, act like a parent you intend to be a parent and you've conceived a child through artificial reproductive treatment then you are a parent under the Family Law Act.

"There'll be blokes out there who provided their sperm to female friends on the assumption that they were never going to be dads, they'd have an uncle-type role. They may find themselves now as parents."

But he said there would be benefits too, particularly in the area of surrogacy.

Even the barrister who represented Susan and Margaret, Michelle McMahon, welcomed the High Court ruling, saying in principle it was a progressive move.

But she said it also imposed no parameters.

"On the basis of the High Court decision, if the sperm donor has an intention to be a parent, that intention does not have to be communicated to the mother," she said.

She said there also was no line drawn on how much involvement, financially, physically and emotionally was needed for a person in this position to qualify as a parent.

'I don't regret the time we gave him'

Robert Masson agreed to speak about this story, but did not reply by the time of publishing.

Despite the pain, and financial burden the five-year fight has led to, Susan said she did not regret making the arrangement to bring a little girl into the world.

"I think you go through changes about feeling regret," she said.

"I feel … for the children I regret what's happened to them.

"The children are the ones that ultimately it will take them a long time to understand.

"I don't regret the time that we gave him. I regret his action."

Margaret said despite the animosity, something special came out of the ordeal: their child.

"She is the most magnificent, wonderful, loving little girl that you could ever have in your life," she said.

*Names have been changed in accordance with Family Court orders

Topics: reproductive-technology, parenting, family-and-children, community-and-society, reproduction-and-contraception, fertility-and-infertility, pregnancy-and-childbirth, law-crime-and-justice, courts-and-trials, newcastle-2300, canberra-2600, act, nsw, australia

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