FAMILY LAW COUNCIL INQUIRY – PART VII FAMILY LAW ACT 1975
WHO IS TO BE CONSIDERED A PARENT?
Introduction
1.
In June 2012 the Attorney-General asked the Family Law Council to consider the
provisions in Part VII of the Family Law Act 1975 that deal with who is considered to
be a parent. The Terms of Reference for the Inquiry require the Council to consider:
i. Whether the provisions in Part VII of the Family Law Act that deal with the
parentage of children lead to outcomes that are appropriate, nondiscriminatory and consistent for children.
ii. Whether there are any amendments that could be made to the Family Law
Act that will clarify the operation, interaction and effect of the relevant
provisions.
iii. Whether there are any amendments that should be made to make the Family
Law Act more consistent with State and Territory legislation that provides
for the legal parentage of children.
iv. Are there any amendments that would assist the family courts to determine
the parentage of children born as a result of assisted reproductive
technology, including surrogacy, where the State and Territory Acts do not
apply?
v. Are there any amendments to the Family Law Act that could be made to
assist other Commonwealth agencies, such as those responsible for
immigration, citizenship and passports, to identify who the parents of a
child are for the purposes of Commonwealth laws?
2.
The Terms of Reference also require that the Family Law Council have regard to the
legal parentage of children as determined by State and Territory laws.
3.
The Family Law Section of the Law Council of Australia (FLS) appreciates the
opportunity to contribute to this Inquiry. FLS also invited the State and Territory Family
Law Committees to provide comment. Comments were provided by the Queensland
Law Society, the New South Wales Law Society and Law Institute of Victoria, and
these were forwarded directly to the Family Law Council by FLS Executive Member,
Geoff Sinclair.
4.
While the comments provided by the State and Territory committees may not reflect
the views of the FLS Executive, they were provided in full to assist the Council in its
Inquiry.
5.
The FLS comments, while not specifically addressing the Inquiry’s Terms of
Reference, examine:
 What is the relevance of being declared a parent?
 What difficulties arise when people are not entitled to a declaration of parentage?
 How is a finding of parentage made?
 When presumptions conflict
 Applications made to the Family Court of Australia and Federal Circuit of Australia
concerning parentage
1
 Possible changes to the law
 Commercial surrogacy - should it be allowed?
 Child support and child maintenance
 Relevance of genetic heritage to the determination of what is in a child's best
interests
6.
These issues were also raised in discussion between Family Law Council Chair,
Professor Helen Rhoades, and FLS Deputy Chair, Wendy Kayler-Thomson.
What is the relevance of being declared a parent?
7.
If an application for parenting orders is made under the Family Law Act 1975, the
parents of the child must be parties to the case. 1
8.
As the word “parent” is not exhaustively defined in the Family Law Act 19752, it is given
its ordinary dictionary meaning.3 In Tobin v Tobin [1999] FamCA 446; (1999) FLC
92-848 The Full Court said at 42:
... in respect of the Family Law Act, in our view, the natural meaning of the word
“parent” is the first definition given in both the Oxford and Macquarie dictionaries,
and the definition “a person who has begotten or borne a child”, from the Oxford
English Dictionary (2nd ed. vol. 9), which was accepted by Gummow J (in a
different context) in Hunt and the Minister for Immigration and Ethnic Affairs
[1993] FCA 116; (1993) 41 FCR 380, at 386.
And [at 45]:
Whilst the term may be capable of being used in different contexts to include
broader categories than those of “father” or “mother”, in our view, the natural
meaning of the word in the context in Part VII, Division 7 of a child is the
biological mother or father of the child and not a person who stands in locus
parentis.
9.
In Groth & Banks [2013] Fam CA 430 at 14 Cronin J said4:
The whole Commonwealth statutory concept as outlined in Part VII of the Act is
one in which biology is the determining factor unless specifically excluded by
law.
10.
A declaration of parentage5 confers upon a person all the duties, powers,
responsibilities and authority which by law parents have in relation to children. That
bundle of rights, powers and duties is the concept of parental responsibility.6 Parental
responsibility is then displaced or impinged upon only to the extent that a Court makes
a parenting order in favour of another person.
1
Regulation 6.02(2)(a) Family Law Rules 2004.
In s4(1) of the Family Law Act the word “parent” is not exhaustively defined. The section reads: “Parent, when
used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child.”
3 See the recital of the authorities by Cronin J in Groth & Banks [2013] Fam CA 430 at 6.
4 Groth & Banks [2013] Fam CA 430 at 14.
5 Section 69VA, Family Law Act 1975
6 Section 61C, Family Law Act 1975
2
2
11.
When determining what is in the best interests of a child in the context of parenting
proceedings, the Court is required to consider a range of factors7 and many but not all
of these factors refer to “parents.” Those factors include, but are not limited to, the
need to protect children from abuse; the views of children; the attitude to parenthood,
and the effect on the child of any change in circumstances. The Court must make
these findings with regard to, and in the context of, the objects and principles to be
applied8 when making parenting orders, many of which again refer to “parents.”
12.
Parents have a right to bring parenting proceedings, without needing to establish that
they are a person “concerned with the care, welfare and development of a child.”9
Parents enjoy a presumption of equal shared parental responsibility10 and a
consideration of equal time, or significant and substantial time.11
13.
Twenty years ago the jurisprudence of the Family Court established that there is no
presumption in favour of parents as opposed to non-parents when determining
parenting proceedings.12 However, despite this lack of any presumption, or hierarchy
of merit, the fact of parenthood remains an important and significant factor in
considering which of the proposals best advance a child’s welfare.13
14.
Implicit in these statutory provisions and as recognised by the Court, a finding of
parentage might well be of the greatest significance to a child in establishing his or her
lifetime identity.14
What difficulties arise when people are not entitled to a declaration of parentage?
15.
Most of the practical things a parent has the power to do for an Australian born child
can be conferred on a non-parent by way of a parental responsibility order. Once a
non-parent has a parental responsibility order in their favour, that person can in most
circumstances obtain private health insurance, open a bank account for the child, enrol
them in a school, have them immunised, obtain a passport, make a claim via
Medicare, and generally attend to all the things that need to be done in caring for
children.
16.
Difficulties can arise in relation to obtaining Australian citizenship rights for a child born
overseas without a finding of parentage in favour of an Australian 'parent'. These
problems primarily arise in international surrogacy cases where the Australian
Department of Immigration is cautious about granting citizenship by descent in the
absence of an overseas Court order displacing the parental responsibility of the
surrogate mother.
17.
Neither the Child Support Agency nor the Family and Federal Circuit Courts have the
power to find a non-parent liable to pay child support.15 So, for example, if a lesbian
couple conceived a child via an artificial conception procedure, but only start
cohabiting closer to the birth of the child, then should that family separate years later,
7
Section 60CC, Family Law Act 1975
Section 60B, Family Law Act 1975
9 Section 65C, Family Law Act 1975
10 Section 61DA, Family Law Act 1975
11 Section 65DAA, Family Law Act 1975.
12 Rice & Miller (1993) FLC 92-415
13 Ibid; Re Evelyn (No 2) (1998) 23 Fam LR 73; Aldridge & Keaton [2009] FamCAFC 229
14 G v H [1994] HCA 48; (1994) 181 CLR 387
15 Tobin v Tobin [1999] FamCA 446; (1999) FLC 92-848. There are limited circumstances in which step-parent
may be liable to maintain a child – section 66D.
8
3
the non-birth mother has no liability to pay child support.16 If a surrogacy fails and the
commissioning parents fail to take on the child, instead leaving it with the surrogate,
the commissioning parents have no liability to pay child support17, although the
surrogate’s current partner might.
How is a finding of parentage made?
18.
The Family Law Act does not have an exhaustive definition of parent. Determining
parentage is instead done with reference to various presumptions of parentage.18
19.
The Family Law Act contains presumptions as to who is a parent when parties have
utilised artificial conception in section 60H of the Act. This section has the effect of
bestowing parentage upon the birth mother and partner if three prerequisites are met:
 The birth mother was in a relationship with her partner at the time of
conception (s60H(1)(a));
 The partner consented to the procedure (s60H(1)(b)(i));
 The prescribed legislation from the woman’s home state, if there is any,
deems her to be a parent (s60H(1)(b)(ii)).
20.
The Act then goes on at section 60HB to provide for presumptions of parentage of
children of surrogacy arrangements, where the intended parents have organised a
transfer of parentage pursuant to their home State legislation. Most States and
Territories have relevant surrogacy legislation which makes provision for a mechanism
for the transfer of parentage from the surrogate and any partner she may have, to the
intended parents. The requirements to be met before a parentage order can be made
vary slightly between States and Territories.19
21.
For the purposes of these two sections, regulations 12C, 12CA and 12 CAA of the
Family Law Regulations 1984 prescribe the relevant State Acts which contain
presumptions of paternity/maternity/parentage. The prescribed legislations for the
purposes of sections 60H(1) and (2) and 60HB(1) are, variously,:
Western Australia
Tasmania
Victoria
New South Wales
Queensland
South Australia
ACT
NT
22.
Artificial Conception Act 1985; Surrogacy Act 2008
Status of Children Act 1974 (the Surrogacy Act of 2012 is not
prescribed)
Status of Children Act 1974
Surrogacy Act 2010; Status of Children Act 1986
Surrogacy Act 2010; Status of Children Act 1978
Family Relationships Act 1975
Parentage Act 2004
Status of Children Act 1978
Importantly, there are no prescribed laws for the purposes of section 60H(3). State
and Territory laws therefore govern the determination of parentage in Family Law
proceedings to the extent that they are prescribed. Different or inconsistent results
may be achieved to the extent that State and Territory laws differ. For example, the
State and Territory laws prescribed for the purposes of s60HB(1) of the Act make
provision for mechanisms to transfer parentage from the surrogate mother and her
married or de facto partner, to the intended parents. Although the transfer of parentage
Section 60H, Family Law Act 1975, which deems parentage upon the birth mother’s spouse or de facto partner
in artificial conception situations, only applies if the couple were in a relationship at the time of conception.
17 See for example the Status of Children Act 1974 (Vic).
18 These are contained in Part VII, Division 12 Subdivision D of the Family Law Act 1975. See Boers, P.,
Surrogacy – the varied approaches of the States and Territories Australian Family Lawyer vol. 22 No. 1 at page 1
19 See Surrogacy Act 2010 (Qld); Surrogacy Act 2010 (NSW); Assisted Reproductive Treatment Act 2008 (Vic);
Surrogacy Act 2012 (Tas). The latter is not yet prescribed legislation for the purposes of the Family Law Act
although the Status of Children Act 1974 (Tas) is prescribed.
16
4
mechanism is consistent amongst the States and Territories where such laws exist,
the requirements before a parentage order can be made in each of the States and
Territories varies.
5
23.
In Mason & Mason [2013] FamCA 424 (7 June 2013) Ryan J considered the effect of
sections 60H and 60HB and said at 33:
...it is my preliminary view that for the purposes of the Act, the 2008 amendments
[which inserted ss 60H and 60HB] evince an intention by Parliament that the
parentage of children born as a result of artificial conception procedures or under
surrogacy arrangements will be determined by reference to those provisions and
not the general parentage provisions. This interpretation achieves, on a state by
state (and territory) basis, a uniform system for the determination of parentage.
24.
In Groth & Banks, decided 4 days after Mason but apparently without the benefit of
that judgment, Cronin J took the view that Commonwealth laws prevail over State
laws on matters of parentage. That case dealt with a section 60H(3) situation, where,
had the relevant State law been prescribed by the Commonwealth, the applicant
would not have been a parent. The Family Law Section submits that the controversy
between single Judge decisions of the Family Court in relation to whether State or
Commonwealth law prevails should be clarified. A useful starting point would be the
complete prescription of all State and Territory law for the purposes of section 60H
and section 60HB. That would, at the least, ensure that intending parents entering
into ART or surrogacy in their State or Territory will have the same parentage
presumptions apply to them in that State and Territory as well as under the Family
Law Act. However FLS recognises that this will still leave a situation where different
presumptions apply to intending parents in different State and Territories. FLS
submits that such a situation is not in the best interests of children or intending
parents, and that harmonisation of parentage presumptions between States and
Territories would be ideal.
When presumptions conflict
25.
There are circumstances in which various presumptions arise and are in conflict with
each other. Perhaps the best-known example is that dealt with by Watts J in Re
Michael: Surrogacy Arrangements [2009] FamCA 691. There, the result of the birth
certificate was not found to be the parent of the child, whilst the surrogate’s de facto
husband (bearing in mind that the surrogate was the maternal grandmother) was. It
needs to be borne in mind that this case was determined before the Surrogacy Act
2010 (NSW) was enacted, so section 60HB had no effect or operation in New South
Wales at the time. It is an example of the possibility for inconsistent application of laws
throughout the Commonwealth and the various pieces of state legislation enacted,
repealed and amended.
26.
The presumptions of parentage contained in subdivision D of Division 12 of the Act are
rebuttable (s.69U). It will be recalled that these are the presumptions arising from
marriage and cohabitation; from registrations of birth; court findings; and
acknowledgements.20
Applications made to the Family Court of Australia and Federal Circuit of Australia
concerning parentage
27.
In general, the litigants that make application to Courts having jurisdiction under the
Family Law Act for parentage declarations can be categorised as follows:
1.
20
Those seeking declarations for the purposes of establishing a liability in another
person to pay child support or child maintenance. Applications for DNA testing,
Sections 69P-T, Family Law Act 1975
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2.
3.
or applications that seek a declaration based on the refusal of a person to submit
to DNA testing, are relatively uncontroversial.
Those seeking a declaration that they are a parent in circumstances where:
2.1. They have a biological connection to the child but are not named on the
child's birth certificate;
2.2. Their relationship (intimate or otherwise) with the other parent has broken
down;
2.3. They seek to be declared a parent so that they can rely on the presumption
of equal shared parental responsibility for parents of a child in section
61DA and the consequences for a Court's decision making process in
section 65DAA to seek a' live with' or 'spend time with' order;
Surrogacy situations, where typically the applicants are a couple in an intact
relationship where they are unable to obtain parentage declarations under State
law, usually because the surrogacy arrangement itself has not been made in
accordance with the relevant State legislation, for example, a commercial
surrogacy arrangement.
28.
In categories 2 and 3, in almost all situations the applicant(s) would be able to apply
for a parenting order, absent a parentage declaration, by virtue of section 65C(c) in
that they are a person(s) concerned with the care, welfare or development of the child.
That includes the ability to apply for a parental responsibility order.
29.
It is the experience of FLS members that litigants in category 2 are primarily concerned
with seeking to spend time with a child, and that it is mainly only because of the
structure of Part VII of the Act and the advantages in the statutory pathway that are
given to parents under that Part, that such a litigant would seek a parentage
declaration.
30.
It is the experience of FLS members that litigants in category 3 are primarily concerned
with obtaining a parentage declaration and/or parental responsibility order to enable
them to obtain a supplementary benefit (such as to obtain Australian citizenship for the
child).
31.
There is another class of litigants who, by virtue of the state of the law as to the
definitions of 'parent,' make application for parenting orders but not a parentage order,
but who would nevertheless consider themselves to be a parent of a child. Typically,
this arises in situations such as that in Wilson and Roberts (No. 2)21 where two
homosexual couples agreed to conceive and raise a child together. The gay male
partner of the biological father of the child in such a situation is not covered by any of
the presumptions in section 60H, yet he might consider himself to be a co-parent of the
child.
32.
Part VII of the Family Law Act suggests that it is possible for a child to have no more
than two parents22. Commonwealth and State laws have tended to lag behind both
changes in reproductive technology and the different constellations of families, and
community attitudes to who is a parent of a child. Whilst Cronin J in Groth & Banks
found that ”the fact that a child has two parents who are her or his biological
progenitors permeates the language of the Act", the primacy of biology in the
determination of who is a child's parents has been displaced for many years by virtue
of State and Commonwealth laws responding to the challenges of artificial
reproductive technology "ART". The widening of availability of ART to, for instance,
single women, lesbian couples and gay male couples, has lead to changes in the law
that presume parentage in some situations regardless of biological connection. FLS
21
Wilson and Anor & Roberts and Anor (No. 2) [2010]FamCa 734
Cronin J in Groth & Banks at para 15: "Part VII of the Act contains multiple references to the parents of the
child as "either" or "both". These can be found at s 60B(1)(a), 60B(2)(a) and (b), 60CC(2)(a), 60CC(3)(d)(i),
61C(2), 65C(a), 66B(2), 66F(1) and 69C(2). The logical presumption which follows is that the legislature
envisaged two parents when dealing with parental responsibility under the Act."
22
7
submits that the language of Part VII insufficiently recognises the realities of some
modern families.
Possible changes to the law
33.
The FLS has consistently advocated that the entirety of Part VII requires review. In its
submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the
shared parenting legislation in early 2006, FLS said that:
Part VII [Children] of the Family Law Act is drafted in a complicated and
confusing way. Its structure is difficult to navigate (particularly for non-lawyers)
and provisions which ought to go together are often many pages of legislation
apart. This will be significantly exacerbated by the proposed amendments.
In that submission FLS recommended strongly that the opportunity be taken to
rearrange the provisions of Part VII in a more logical and accessible sequence.
34.
Further, in providing comments to the Attorney-General’s Department regarding
the exposure draft of the Family Law Amendment (Family Violence) Bill 2010, FLS
said that
Part VII of the Family Law Act is already complex and convoluted. Ongoing
efforts to "clarify by addition" in many senses only have the effect of increasing
complexity, and thereby confusion.
The Family Law Section submits that a critical aspect of any efforts to amend
Part VII so as to deliver better outcomes for separating families is to simplify the
legislation, both to make it more readily understood by the public, and to
eliminate the largely artificial complexity of the decision making process which
the Courts are presently mandated to follow.
35.
FLS submits that a simpler legislative pathway, and the removal of the link between
the presumption that parents have equal shared parental responsibility and the
consideration of equal/substantial and significant time, may reduce the sometimes
artificial conflict about parentage in some parenting cases. That is particularly so given
that the Act still allows for parenting orders to be made in favour of people who are not
parents, but who are interested in the care, welfare and development of a child.
36.
FLS maintains that piecemeal amendment to Part VII is not desirable. However, in so
far as the question of parentage is concerned, FLS makes the following observations
and comments.
Is it necessary for there to be a definition of 'parent' in the Act?
37.
FLS submits that there should be a definition of 'parent' in the Act, and that the current
definition in section 4(1) requires expansion and elaboration. The current definition is
of no assistance unless a child is adopted.
38.
The current State and Commonwealth laws regarding declarations of parentage in
families that have used ART and/or surrogacy arrangements are not consistent. The
resolution of conflict between laws of the Commonwealth and laws of the States is
unsatisfactory for children and for people embarking upon ART. For example, the
single mother in Groth & Banks entered into ART reliant on the presumption contained
in the Victorian Status of Children Act that the sperm donor would not be the father of
the child, but found after the birth of the child that the Commonwealth law prevailed to
the opposite effect. FLS submits that it is desirable that the law about parentage is
clear and unambiguous and is consistent between State, Territories and the
Commonwealth.
8
39.
From a very practical perspective, clarity about who is or is not a parent is required
given that parents of a child are required to be parties to a parenting case under the
Family Law Act concerning that child.
40.
The FLS submits that further community consultation about a broader definition of 'who
is a parent' would be of assistance. FLS submits that the current state of the
Commonwealth law which relies heavily on a biological connection with the child (with
some exceptions for ART) to define 'parent' may be out of date with community
expectations and standards. For instance, does the community accept a co-parenting
relationship between more than 2 people, and does the community accept one-parent
families? FLS accepts that the result of such consultation may require amendment not
only to Commonwealth law, but also to State and Territory laws given that the States
and Territories make laws about ART and surrogacy. So, for instance, if the
community expectation is that co-parents be given legal recognition, then it may be
necessary to amend State laws dealing with who must consent to ART.
Commercial surrogacy - should it be allowed?
41.
The experience of FLS members is that the ban on commercial surrogacy in Australia
creates a vacuum of reproductive options for some Australians; a vacuum which some
Australians fill by resort to overseas commercial surrogacy options.
The
criminalisation of overseas surrogacy in three States of Australia has not stopped
some people from undertaking this option. FLS submits that further consideration and
community consultation should take place in relation to legalising commercial
surrogacy within Australia. Legalisation would have the benefit of putting in place
safeguards for birth mothers and children, similar to those in place for altruistic
surrogacy arrangements.
42.
However, FLS also expects that the affordability of surrogacy services in developing
nations may still be attractive to some Australians, even if surrogacy within Australia
became legal. Thus, the dilemma created for Courts exercising jurisdiction under the
Family Law Act in considering the best interests of children born of such arrangements
may remain. International efforts at achieving a Convention to deal with surrogacy are
to be encouraged.
43.
FLS supports the introduction of Rules to assist Courts exercising jurisdiction under
the Family Law Act when they are asked to make parenting orders concerning children
born as a result of overseas commercial surrogacy. Justice Ryan, in Ellison, contains
a suggested 'model process' in such cases which the FLS generally supports. FLS
respectfully disagrees with the Law Institute of Victoria's submission that opposes the
introduction of such processes. In particular the FLS disagrees with the LIV's
assertion "that commercial surrogacy cases are often better managed than altruistic
cases, which are not managed at all except for legal advice and counselling". FLS
submits that the processes now adopted in most States and Territories in relation to
altruistic surrogacy is detailed and comprehensive. FLS submits that problems in
relation to the determination of the freedom and informed consent of overseas
surrogates is fraught with significantly more difficulties than for Australian altruistic
surrogacy arrangements.
Child support and child maintenance
44.
FLS recommends that the question of who is liable to pay child support/maintenance
for children be reviewed. FLS submits that it is inconsistent, and not in the best
interests of a child, for persons who obtain parenting orders in relation to that child but
not a declaration of parentage, to have no liability to support that child.
9
Relevance of genetic heritage to the determination of what is in a child's best
interests
45.
FLS submits that consideration should be taken of the emerging research and
evidence of the negative emotional and psychological impact on some adopted
children and some children born as a result of the use of anonymous donor sperm who
do not have access to information about their genetic heritage. The question of a
child's access to information about such genetic information may be a relevant
consideration in determining what is in a child's best interests when a Court exercising
jurisdiction under the Family Law Act is asked to make a parenting order in relation to
that child. However, in keeping with FLS's view that Part VII should be simplified, FLS
would not support the introduction of an amendment to section 60CC to include a new
factor dealing with a child's 'identity' or 'genetic heritage'.
10