The definition of what constitutes a ‘parent’ in Australia has undergone significant change in the last few decades.
A child’s parentage often does not fit the nuclear model (mother and father to their biological child) and so the provisions of the Family Law Act have had to adapt to the changing face of what constitutes a ‘parent’ or the changing definition of a child’s ‘family’ in modern Australia.
However, the provisions of Part VII Family Law Act are not in all aspects up-to-date in respect of the modern Australia societal definition of a ‘parent’.
The question ‘Am I a parent’ for the purpose of the Family law Act 1975 is therefore not a simple question to answer.
Am I a parent under the Family Law Act?
The term ‘parent’ is not defined in the Family Law Act, other than to define that an adoptive parent is considered a parent for the purposes of the Act (section 4 Family Law Act).
One wonders why there is no definition of ‘parent’ in the Family Law Act as the term is referred to repeatedly in the Act. In any parenting application, a Judge must consider who will have parental responsibility for a child, whether it is in the child’s best interests to have a meaningful relationship with both parents, what is the nature of the child’s relationship with both parents, what is the likely effect of a separation on the child from either of his or her parents.
As a result, Judges are required to carefully consider the case law in determining whether in each case, a person meets the definition of a ‘parent’ for the purpose of the Act.
Am I a parent Case Study: Groth & Banks
In the case of Groth & Banks [2013] FamCA 430, the Family Court was asked to clarify the definition of a parent under the Family Law Act after a child was conceived by assisted reproductive technology (“IVF”). Here the Applicant was the person who supplied his genetic material and sought parenting Orders from the Court after the Mother denied his attempts to have a relationship with the child and be involved in parenting the child.
The Respondent Mother argued that the Applicant was not a parent at law as he had done no more than provide his genetic material for use in an artificial conception procedure.
On the contrary, the Applicant argued that for the purpose of Part VII of the Family Law Act (Cth), “parent” means a child’s biological parent, unless there is express provision for an alternative.
The Court contemplated the definition of a ‘parent’ in the context of the Act and current case Law. It was held that given there is no exhaustive definition of the word ‘parent’ in the Act, except where the child is adopted, the word ‘parent’ should take its ordinary dictionary meaning. Cronin J considered the cases of Donnell v Dovey [2010] , Tobin v Tobin [1999] ,and Re: Mark: An Application relating to Parental Responsibilities [2003] in making his findings that the applicant was a ‘parent’ for the purposes of the Act.
He concluded that:
“In s 4 (1) of the 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 a child’. The definition is unhelpful where the child has not been adopted. The lack of comprehensive definition means that the word “parent” should be given its ordinary dictionary meaning. That approach is consistent with the use and obvious intention used throughout the Act …[8]
…. the interpretation of ‘parent’ in the Act allows each case to be determined on its particular facts. [9]
The fact that a child has two parents who are her or his biological progenitors permeates the language of the Act. The whole Commonwealth statutory concept as outlined in the Part VII of the Act is one in which biology is the determining factor unless specifically excluded by law…[10]
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.[11]
The applicant fits that presumption in the Act of who is a parent. He is the biological progenitor and one of two people who set about a course of conduct with the intention of fathering a child. On the face of the language in the Act and the facts here, a logical conclusion would be that the applicant is the parent of the child. If one turns to the sections of the Act that displace biological progenitors as parents, little changes.” [12]
The court’s interpretation of a ‘parent’ in this case was assisted by the fact that the Applicant (Father) wanted to have a relationship with the child and the Court distinguished this case to other cases where the sperm donor was unknown as “the Act does not impose obligations on an unknown person who had donated biological material”. [13].
Masson & Parsons – High Court declares sperm donor father is a parent
In the landmark High Court Decision of Masson v Parsons & Ors [2019] HCA 21 the High Court had the final say, ruling that the appellant sperm donor Father, was the legal parent of his daughter.
Mr Masson and Ms Parsons were close friends for many years. Mr Masson provided his semen to Ms Parsons to enable her to conceive a child by artificial insemination in 2006.
At the time of conception, Mr Masson believed that he would be involved in the child’s life. Ms Parsons became pregnant and gave birth to a daughter.
Importantly, at the time Susan became pregnant, she was not in a de facto relationship with anyone.
On the child’s birth, Mr Masson’s name was also recorded on the child’s birth certificate as her father.
Ms Susan Parsons later commenced a de facto relationship with Margaret. Susan and Margaret had another child together during their relationship. Robert was not the biological father of the second child.
While the children grew up living with Susan and Margaret, Robert Masson had an ongoing role in both children’s lives and spent regular time with both children. He provided financial support for his biological daughter and had an ongoing role in her health, education and general welfare. He and the child were described as having a close relationship. The child and her sister both called him ‘Daddy’.
In 2015, Susan and Margaret sought to move with the children to New Zealand. Robert opposed the move, given it would impact his relationship with his daughter. He commenced proceedings in the Family Court seeking various orders, including an order for equal shared parental responsibility and an order restraining the child from relocating to New Zealand.
Robert won, then he lost, then he won
Initially, the primary Judge in the Family Court found in favour of Mr Masson and he was successful securing an order preventing the child’s relocation to New Zealand. The Judge held that Susan and Margaret were not in a de facto relationship at the time the child was conceived and that Robert was the child’s parent. The Judge made orders that Margaret and Susan have equal shared parental responsibility for the child, but they were required to consult Robert before making any long term decisions. This included that they were restrained from relocating the children to New Zealand without Robert’s consent.
On appeal to the Full Court of the Family Court, Ms Parsons succeeded in overturning the primary Judge’s decision, determining that Robert was not the child’s parent. Susan and Margaret relied upon section 14 of the Status of Children Act 1996 (NSW) (the NSW Act), which provides that there is an irrebuttable presumption that a biological father of a child conceived by a fertilisation procedure is not a ‘parent’. She asserted that due to Mr Masson being a ‘sperm donor’, he could not be categorised as a parent. The Full Court determined that there was a gap in the law which was to be applied in the Family Court and, therefore, that the state legislation, as set out in the Status of Children Act 1996 (NSW) (SCA), applied and therefore the appeal was successful.
The impact of that determination was that a sperm donor could not be a child’s parent as the Status of Children’s Act states irrebuttable presumption that, if a woman (whether married or unmarried) becomes pregnant by way of a fertilisation procedure using sperm from a man who is not her husband, the man is presumed not to be the parent of any child born as a result of the pregnancy.
Robert was then given leave to appeal the decision to the High Court of Australia.
The High Court decision
The High Court was primarily asked to consider a question of administrative law, that is, whether there was a gap in the law that would mean sections 14(2) and 14(4) of the SCA applied to applications for parenting orders under the Family Law Act 1975 (Cth).
If the provisions of the Status of Children’s Act applied, Robert was not the child’s parent. IF the provisions of the Act did not apply, Robert could be considered a parent for the purposes of the Family Law Act 1975.
The High Court held there was no gap in the law and, therefore, the Status of Children’s Act did not apply in the circumstances of the case. In practical terms, this meant Robert was considered parent of the child.
Of relevance to Family Court proceedings, the Family Law Act 1975 (Cth) (FLA) did not limit the categories of people who could be deemed to be parents of a child.
The sperm donor Robert was the child’s father and, therefore he was entitled to be consulted about major long term decisions in the child’s life, including whether Susan was able to relocate the child’s residence to New Zealand.
What if I am not considered a ‘parent’ under the Family Law Act?
Are you currently performing the role of parent in a child’s life, but you are not a parent for the purposes of the Family Law Act?
Whilst policy makers have attempted to keep up with the advancements in modern reproductive medicine, the Family Law Act is regrettably not up-to-date in all respects in relation to the changing face of what constitutes a “parent” or a child’s notion of “family” in modern Australia.
An example of this is the definition of who is a parent when a child is born as a result of artificial conception procedures (CF the circumstances of Massons & Parsons where a sperm donor determined to be a legal parent in the specific circumstances of that case).
Unless a partner to a woman who has had a child via artificial conception can prove that they were married or in a de facto relationship with the woman at the time of the conception – then according to section 60H of the Family Law Act they are not a parent for the purpose of the Act.
This can have significant effects on a person’s 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.
What if???
What if Susan and Margaret were in a de facto relationship at the time of conception of the child?
The timing is quite important to the outcome of that case.
If Susan and Margaret had been in a de facto relationship at the time of the artificial conception, and Margaret had consented to the artificial conception, the Family Law Act would have expressly provided that Robert was not the parent and the primary Judge may have determined that Robert was not a parent in the circumstances of that case.
However, it is also pertinent that Robert’s name was entered on the birth certificate for the child. It is presumed that persons named on the birth certificate are the parents of that child. However, if that presumption conflicts with the law about artificial conception noted above, then it would not apply – the general presumption about the birth certificate is trumped by the strict rule relating to sperm donors not being parents where at the time of conception a de facto relationship existed between the person artificially inseminated and the de facto partner.
It appears that the law has failed to keep up with technology and the modern family dynamic as there has not been appropriate contemplation by law makers that a child may have more than two parents.
In some circumstances, could it not be in a child’s best interests to determine that there are three parents who all have a meaningful involvement in that child’s life? We think so.
The objects and principles of the Family Law Act are to ensure that any parenting order made is in a child’s best interests. However, the Act references repeatedly children having the benefit of ‘both’ parents, which appears to contemplate that a child cannot have more than two legal parents.
In the original decision in Massons & Parsons, the trial Judge stated that while biology was relevant, more significant was the fact that Robert believed he would take on the responsibilities of being a parent to the child and he had an intention to be involved in the child’s life, and furthermore, he did in fact play an active role both socially and financially in the child’s life.
We look forward to seeing an update to the law that reflects the modern society and contemplates the fact that in some circumstances there might be more than two people in a child’s life who qualify as a parent of a child.
This would deal with the circumstances set out in Massons & Parsons where there is a de facto couple with a friend who provides sperm to inseminate one of the parties but then the sperm donor takes an active part in the child’s life.
Getting back to if you are not a parent..
If a person cannot demonstrate that they are a ‘parent’ of the child, then they will not be presumed to share parental responsibility with the biological parent of the child.
As a result, the person will be required to apply to the court seeking parental responsibility as a person concerned with the “care, welfare and development” of a child (section 65C of the Family Law Act).
However, a person who is determined by a court to be concerned with the “care, welfare and development” of the child does not have the same benefits when applying for a parenting order, as that of a parent. ‘
For the non-parent, this effectively means that:
- There is no presumption that the parent and the non-parent should have equal shared parental responsibility in relation to long term decisions affecting the child;
- There is no right of the child to have a meaningful relationship with the non-parent;
- There is no requirement for the court to consider whether the child spending equal time or substantial and significant with the parent and the non-parent is in the child’s best interests and practical.
This creates certain limitations for non-biological parents seeking relief from the court in contested parenting applications.
For a more detailed discussion of the rights of non-parents when applying for parenting orders, see our family law article on Non-Parent Parenting orders.
As the notion of what constitutes a “parent” expands within Australian society, the concept in the Family Law Act will similarly need to expand.
Given the current deficiencies highlighted in the Family Law Act 1975, it would assist for policy makers to amend the current definition of ‘parent’ to a more inclusive concept not limited to the traditional definition of a parent that is currently recognised under the law.
Are you unsure whether or not you are considered a parent under the Family Law Act?
Contact our office on 3465 9332 and book a reduced rate initial consultation with one of our experienced Brisbane Family & Divorce Lawyers to have a confidential discussion about your individual circumstances.
