Family Law Council releases report on Parentage and the Family Law Act

by Peter Magee on September 9, 2014

Peter Magee

Gone are the days when the nuclear family was the assumed norm. Today families come in many different shapes and sizes. Shifts in community attitudes to divorce, same-sex de facto relationships, single parent families and blended families, not to mention the rapidly changing nature of reproductive technology, have all contributed to this shift. The concept of “family” is broader than it has ever been.

At times, the slow moving nature of the law means that it is simply not nimble enough to cope with situations that our evolving world throws at it. This can be a source of frustration for people who rely on the law to assist them with very real and practical aspects of their lives. In the family law context, an example of this includes the legal status of parents and children.

With the rapid changes in technology and community values, the question, “Who is a parent in the eyes of the law?” is something that we as family lawyers are being asked with increased frequency. Unfortunately for a growing number of people who identify as parents, the answer to this question does not always have a straight forward answer.

Currently, the combination of state and federal law creates some challenging inconsistencies. This means a child born to one family may have a very different legal relationship with their parent or parents, to a child born in different circumstances to another family. For example, there are ambiguities between state and territory legislation and the Family Law Act when it comes to the parental status of known donors of genetic material, in cases where a single woman has children using IVF.

Similarly, whilst the definition of “parents” in state and territory legislation includes people who are recognised as parents according to Aboriginal and Torres Straight Islander tradition or custom, the Family Law Act definition is not so expansive.

Another issue that has received a lot of media attention recently is international commercial surrogacy arrangements and the legal status of the intended Australian parents.

On 14 August 2014, the Family Law Council released their Report on Parentage and the Family Law Act, which grapples with and makes recommendations about these very issues. The 200-plus page Report recommends some of the most significant changes to Australian parenting laws since the shared parental responsibility amendments to the Family Law Act in 2006.

The Report acknowledges that, “The use of reproductive technologies and surrogacy to create families has… increased the number of potential parents that a child may have, including a mix of genetic, gestational, social and intending parents”. It recommends that, “The Family Law Act should make specific provision for the making of orders in favour of one person or more than two persons where that supports the child’s best interests.”

It also makes recommendations about children that are born to surrogate women overseas that do not have a “secure legal relationship” to the genetic parents who are raising them in Australia. It recommends that the Family Law Courts be given new powers to transfer legal parentage from surrogate parents. Amongst other things, the Court would need to be satisfied that such an order is in the best interests of the child and that the surrogate mother has given their full and informed prior consent.

From my experience, a child’s relationship with their family plays a crucial role in shaping their sense of self and identity. Relationships shape a child’s world view and are often a source of pride and self confidence. It is my view that legally recognising people who are parents for all practical purposes will be a welcome step forward for parents and their children. This sentiment is echoed in the Report, which says that, “It is important that children are not disadvantaged because of their family structure or how it was formed.”

It will be interesting to see if, when and how the Family Law Council’s Recommendations are adopted by the Government.

Armstrong Legal is able to assist you with all family law matters, including cases which involve complicated questions of parentage. If you require our advice, do not hesitate to contact our office on (02) 9261 4555.

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