Rainbow Families and Diverse Parenting Structures – Best Interests of the Child (Martine & Carmona [2024])

Recently I saw numerous headlines pop up in my news feed about a new parenting case. Some headlines included “Birth mum loses to Sperm donor in landmark custody case”, and “Sperm donor wins custody of child over birth mother in landmark case”.

As a family lawyer, naturally I was curious to find out more about this “landmark” case and went searching for the judgment. What I found, unsurprisingly, was that the case was a lot more nuanced than the headlines suggested, and that some of the descriptions used for this matter, particularly for the LGBTIQ+ parties involved, were inaccurate.

Martine & Carmona [2024]

The case involved a child referred to as “X” (a 9-year-old boy), who was part of a rainbow family with two mothers and a father. X was conceived by IVF following an agreement between all 3 parents-to-be. X was described as a “sweet, happy and confident much-loved child who feels secure in the love of all his parents and is happy spending time with all of them”.

Unfairly calling the Father “the sperm donor”

The first thing I found interesting about the case and the reporting of it was that many of the articles repeatedly referred to the father involved (known under the pseudonym of “Mr Hooper” in the judgment) as the “sperm donor”. And although this may technically be correct under certain legislation due to how the child was conceived, it does not acknowledge the true role this Father had.

In the case, it was acknowledged by all, including the Judge, multiple experts, both mothers and the child, that Mr Hooper had been the child’s father since X was born. For 9 years, Mr Hooper had been a father to this child, had been spending time with him on a regular basis and was referred to as “Daddy” by the child. It was also found that prior to X being born, both mothers and Mr Hooper had entered into a parenting agreement with the intention that if they had a child together, he would have a role as the child’s father.

In the Judgment, it was noted that Mr Hooper was unhappy about repeatedly being referred to as “the sperm donor” (understandably so), and yet, that is what many publications have reduced him to. This is particularly disappointing given the overwhelming positive findings made by experts, the comments made by at least one of the mothers, and by the Court about Mr Hooper. Some of the observations about Mr Hooper included describing him as “frank, honest, straightforward”, having “insight into X’s needs and overall welfare” and being a good man who had always been there for X. Experts in the case recommended that X would benefit from having Mr Hooper as a major part of X’s life, that X had a right to have Mr Hooper in his life as a significant person and that Mr Hooper needed to continue being a significant person in X’s life for X’s overall emotional wellbeing. The Judge also said “There are no criticisms to be made in relation to Mr Hooper as a parent.”

To constantly call him “the sperm donor” is to significantly understate his role in this child’s life. Put simply, in the child’s own words: “Daddy is my parent”.

Referring to the Mother as the birth-mother’s ex-partner

Another feature of some of the coverage of this case seemed to focus on the “birth mother” as X’s mother, and X’s other mother being referred to as “the birth-mother’s ex-partner”. Again, this does not do justice to her role as X’s mother.

Just because a parent is not genetically related to or child, and/or does not give birth to them, does not reduce their role as a parent.

This mother (called “Ms Carmona” in the Judgment) had lived with X for all of his life, was called “Mumma” by X and was the parent X said he wanted to live with primarily. She was also the parent the Judge ultimately decided that X should live with (while also spending time with his other two parents).

Implying the Father, and to some extent the other mother, somehow took rights away from the ‘birth mother’

Some articles refer to the birth mother (called “Ms Martine” in the case) as ‘losing her parental rights’ or ‘losing’ to the sperm donor. However, the reality is quite different. Ms Martine was not opposing the child spending time with X. It was part of her proposed Orders that the father spend regular time with X.

What the Judge Ordered was for one of the mothers (Ms Carmona) to share parental responsibility with the Father and that in making decisions for X, they both consult Ms Martine before making long term decisions. It is not uncommon for one parent not to have parental responsibility, particularly in cases of high conflict. An Order for parental responsibility that does not include one parent does not deny that parent’s “rights”, nor does it mean that parent does not have a relationship with the child or spend time with them.

In this case, part of the reason for this Order, rather than sharing responsibility between all three parents, was due to the Judge’s concern that Ms Martine would not be able to reach agreement with the other mother and the father.

Is this a ‘landmark’ case?

From a family lawyer’s point of view, the outcome in this matter was not surprising. The Orders provide for all three parents to continue to be involved in X’s life and spend regular time with him.

The duty of the Court is to consider what Orders would be in the child’s best interests, and the Judge in this matter gave this careful consideration after hearing all of the evidence, including from experts and the child’s own wishes.

It is also not the first case to consider whether a Father who was technically a ‘sperm donor’ under state legislation, was in reality a parent. The High Court has previously held that whether or not someone is a parent, will depend on the facts of the case. In the 2019 case of Masson v Parsons the Court said “To characterise the biological father of a child as a “sperm donor” suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is thereafter to have nothing to do with any child born as a result of the procedure.” In that case, like this one, he was a father, not a “sperm donor”.

Where to from here?

Whilst members of the LGBTIQ community and rainbow families may face more obstacles than others, in parenting proceedings, the focus on the best interests of the child remains paramount.

The law can sometimes be slow to catch up with reality, but in this case, it seems the law and the Judge were on point; it was some of the reporting of the case which was outdated and incorrect.

If a 9-year-old child can grapple with diverse parenting structures, the rest of us should follow his example.

Article By: Kasey Fox

Director

Kasey began her family law career with us back in 2004 and was made a Director in 2013. Originally from Alice Springs, Kasey has made Canberra her home more than 20 years. She is pragmatic, thorough, passionate about her work and very protective of her clients. When necessary, Kasey is a fierce litigator, but she also is an advocate for Collaborative Law and tries to reach negotiated outcomes whenever possible.

Read More >