The Family Law Council of Australia’s “Report on Parentage and the Family Law Act” was recently released by Attorney-General Senator George Brandis.
The purpose of the report was to review whether judicial determination of contested parenting cases were affected by the way in which a child’s family was formed.
In particular the Terms of Reference included (amongst other queries) consideration of:
Whether the provisions in Part VII of the Family Law Act that deal with the parentage of children lead to outcomes that are appropriate, non-discriminatory and consistent for children.[i]
In a nutshell, if a child’s parentage does not fit the nuclear model (i.e. mother and father to their biological child), are the provisions of Part VII of the Act still relevant, able to be applied and, if so, being applied consistently by the judiciary?
The concept of parentage seems instantly recognisable and unassailable to the majority of us. However there is no doubt that the notion of what constitutes a “parent” in Australia has undergone rapid change over the last few decades.
The term “parent” is not defined in the Family Law Act, except to define that an adoptive parent is considered a parent for the purposes of the Act (s.4).
For a term that is not defined in the Act, it permeates Part VII and demands methodical and calculated consideration by the judiciary.
- Who will have parental responsibility for a child?
- Is it in the best interests of a child to have a meaningful relationship with both parents?
- What is the nature of a child’s relationship with each of the child’s parents?
- What is the likely effect of separation on the child from either of his or her parents?
The list of considerations in even the most basic of contested parenting application are considerable.
But what if you find yourself performing the role of parent in a child’s life, but you are not a parent for the purposes of the Act?
Whilst policy makers have done well to keep up with the advancements in modern reproductive medicine and the changing face of what constitutes a “parent” or a child’s notion of “family” in modern Australia, the report highlights inconsistencies in application of the provisions of the legislation.
An example is the definition of who is a parent when a child is born as a result of artificial conception procedures.
Unless a partner to a woman who has had a child via artificial conception can prove that they were married or in a defacto relationship with the woman at the time of the conception – then they are not a parent for the purpose of the Act (s.60H)).
This can have significant effects on their capacity to seek orders in relation to a child despite the fact that they may have had a substantial and influential parenting role in the child’s life.
If a person cannot demonstrate parentage, then they will not be presumed to share parental responsibility. This necessitates an application to the court seeking parental responsibility as a person concerned with the “care, welfare and development” of a child.
The report sets out the limitations for non-biological parents seeking relief from the court in contested parenting applications.
As the notion of what constitutes a “parent” expands within the community, the concept in the legislation will similarly need to expand.
The report highlights a number of recommendations, one of which is to include an amendment to the current definition of“parent” to a more inclusive concept not limited to the definition of a parent recognised under the law. It is further recommended that the term should be extended to include people considered to be parents under Aboriginal and Torres Strait Islander custom.
To download The Family Law Council of Australia Report on Parentage and the Family Law Act, please click here.