Masson v Parsons [2019] HCA 21

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

MASSON APPELLANT

AND

PARSONS & ORS RESPONDENTS

Masson v Parsons [2019] HCA 21 19 June 2019 S6/2019

ORDER

1. Appeal allowed.

2. Set aside orders 2, 3, 4 and 8 made by the Full Court of the Family Court of Australia dated 28 June 2018 and, in their place, order that appeal number EA 111 of 2017 be dismissed.

3. The first and second respondents pay the appellant's costs of the appeal to this Court.

On appeal from the Family Court of Australia

Representation

M P Kearney SC and C L Lenehan with E A Lawson and D P Hume for the appellant (instructed by Steiner Legal)

B W Walker SC with M McMahon and J S Stellios for the first and second respondents (instructed by McDonald Johnson Lawyers)

S B Lloyd SC with S M Christie SC and P D Herzfeld for the third respondent (instructed by Legal Aid NSW)

S P Donaghue QC, Solicitor-General of the Commonwealth, with B K Lim for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

R M Doyle SC with F I Gordon for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Masson v Parsons

Constitutional law (Cth) – Courts – Federal courts – Federal jurisdiction – Matter arising under Commonwealth law – Where Commonwealth law provides rules in respect of parentage of children born of artificial conception procedures – Where State law provides irrebuttable presumption that biological father of child conceived by fertilisation procedure is not father in specified circumstances – Whether s 79(1) of Judiciary Act 1903 (Cth) operates to pick up and apply text of State law as Commonwealth law – Whether State law regulates exercise of jurisdiction – Whether Commonwealth law has "otherwise provided" within meaning of s 79(1) of Judiciary Act – Whether tests for contrariety under s 79(1) of Judiciary Act and s 109 of Constitution identical – Whether State law applies of its own force in federal jurisdiction.