Legal status of parenthood

Who is a parent?

This apparently simple question is becoming increasingly difficult to answer. In the contemporary world, the list of people with arguable claims to parenthood include not only the traditional ‘Mums and Dads’ who provide genetic material, give birth to and then raise a child, it also includes parents who provide genetic material but who don’t give birth to a child (artificial conception); mothers who give birth to but are not the biological mother of a child (surrogacy); adoptive parents; step-parents; and parents who care for and raise a child, but are neither birth or biological parents. The courts hear cases where people are in dispute with each other about who has the better claim to be ‘The Parents’ of a particular child. Australian law has been working hard through continuing reform efforts to provide guidelines to determine ‘who is the parent?’ The level of complexity is high however, and at this stage, the law has not been prepared to consider that a child might in fact have more than two parents. Again, also, the interface between state and federal law is problematic.

Parenthood under state and territory law

Each Australian state and territory has legislation to guide decisions about who is a parent for the purposes of other of their laws that refer to the obligations or ‘rights’ of a parent. These differ significantly between jurisdictions, especially at this time when most jurisdictions are engaged somewhere in the process of law reform on the issue.

In NSW, the Status of Children Act 1988 (NSW) states that the Supreme Court may, on the application of a person, make a declaration about who is and who is not a parent of a particular child. Once this has happened – or if an order of any other recognised court makes an order that a person is a parent – then evidence cannot be led in a NSW case to argue for a different result. The declaration or order then takes effect as one of a number of ‘presumptions of parentage’: section 12. The other presumptions, contained in sections 9 to 14 of the Act, include that:

  • a man is a father because he is married to a woman who has given birth to a child;
  • a man is a father because he has lived with the mother for a certain period of time;
  • a person is a parent because their name is on the birth certificate;
  • a man is a father who has made a formal paternity acknowledgement; and
  • a person is a parent in certain circumstances arising from the birth of a child following an in vitro fertilisation procedure.

The presumptions arising from the declaration of a court and the use of a fertilisation procedure are ‘irrebuttable’ (meaning ‘non-arguable in court’). The other presumptions, however, are rebuttable which means the party disputing the presumed parentage can present evidence to the court (eg DNA evidence) that the parenting presumption does not lead to the correct outcome.

An order that a person is a parent can also be made in NSW under the Surrogacy Act 2010 (NSW). This deals with the circumstance, undertaken sometimes by gay and other couples unable or unwilling to give birth themselves, that biological material from one or both of the intended parents of a child born under the arrangement is implanted by an artificial conception process in the uterus of another woman who then becomes pregnant with, and gives birth to, a child. The Surrogacy Act is intended to facilitate the transfer of legal parentage from the birth mother to the intended parent if certain stringent conditions are met. These include (among other requirements) that:

  • the arrangements are in the best interests of the child;
  • the surrogacy arrangement is ‘altruistic’ (not for money);
  • the intended parents are of a certain age and/or of demonstrated maturity;
  • the agreement in writing;
  • there is medical or social need for the surrogacy;
  • parties have been counselled; and
  • everyone concerned, including the birth mother, consents to the parentage order being made.

See Division 4 of the Surrogacy Act 2010 (NSW) for more detail.

NSW law also sets out who may be an adoptive parent and establishes the process by which adoption formally takes place: the Adoption Act 2000 (NSW).

Commonwealth law: the Family Law Act 1975

The definition of ‘parent’ under the Family Law Act includes ‘natural’ parents and adoptive parents. Step-parents and other adults performing in parent-type roles (eg some grandparents), are not included within the definition of ‘parent’ under the Family Law Act unless they have legally adopted the child. They may obtain responsibility and authority in relation to the care and control of children only by obtaining a parenting order from a court. For more information see Parenting orders.

One of the objects of the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 was to remove discrimination against same-sex de facto couples who wish to have children using artificial conception. It provides that if a child is born to a woman in a married or de facto relationship with an ‘intended parent’ at the time of artificial conception, then that person is the parent, not the sperm donor: section 60H of the Family Law Act. Similarly, under section 60HB, the Act states that if a state or territory law provides that a person is a parent under a surrogacy arrangement, then that order will be upheld for family law purposes.

As in the state and territory legislation, presumptions of parentage apply also for the purposes of the Commonwealth’s Family Law Act: see sections 69P-69U. By contrast with the state law presumptions, however, all of the presumptions in the Family Law Act are rebuttable (arguable by presentation of alternative evidence).

A parenting presumption can be overturned if evidence is presented to the court that proves it to be incorrect. This occurs most frequently by the use of DNA parentage testing. Also, the parenting presumptions do not apply where the biological parents have had only a short or casual relationship. In such cases, DNA parentage testing may be necessary to prove the identity of a birth parent and establish the legal allocation of responsibility and authority for care and support of a child (such as responsibility to pay child support).


Does ‘who is a parent’ matter?

The majority of children in Australia grow up in circumstances where there is at least one adult involved in caring for and supporting them. That adult may also take responsibility for decisions concerning the child – such as where the child lives or goes to school, and what medical treatment the child may have. This authority, along with the responsibility for care, welfare and proper development of the child is known as ‘parental responsibility’. This legal concept replaced the concept of guardianship in an amendment in 1995 to the Family Law Act.

Under Australian family law, the only adults legally authorised to exercise parental responsibility without a court order are the ‘parents’ of a child under the Act. These would include birth parents, adoptive parents, those presumed to be parents by the operation of the parentage presumptions, and those deemed to be parents by the operation of the provisions for artificial conception and surrogacy.

Although other adults, such as a step-parent, may be involved in the care and support of a child, only these parents (who possess innate parental responsibility), or others who possess a court order for parental responsibility, can be held accountable, and have the ultimate authority, for making decisions about a child.

Any adult concerned with the care, welfare and development of a child can apply for a family law order granting them parental responsibility, or an aspect of parental responsibility. In cases of abuse or neglect, parental responsibility can be formally granted to a government Minister – in NSW, the Minister for the Department of Family and Community Services. See Hot Topics 81: Child care and protection for more detail.

The government and the courts encourage parents to share in the exercise of their parental responsibility for a child, even after they separate. Adults in dispute about who should make decisions concerning a child, or who cannot agree on a particular decision together, can apply to a family law court for a parenting order that formally separates and allocates aspects of parental responsibility, or decides an issue in dispute, according to an assessment of what is in the best interests of the child. For more detail about parenting orders see Parenting and property after separation.

Rights of parents?

Interestingly, the Australian Constitution (at section 51) mentions the phrase ‘parents’ rights’ and makes a specific allocation of power and responsibility to the Commonwealth Government to make laws for ‘parents’ rights’. But the trend in development of the Family Law Act, ever since its inception, has been to move away from the idea that parents have rights – like ownership rights – to have custody of, or contact with, children.

There are individuals and groups in Australia who argue that parents do have such rights in respect of their children. In the lead-up to the major amendments to the Family Law Act in 2006, there was renewed lobbying for recognition of parental rights, including ideas about the existence of a parental right to have a child spend time with the parent after separation. The Senate Committee examining the proposed reforms rejected these views, deciding that was simply not possible to reconcile the idea of parents’ rights with the principle of the ‘best interests of a child’, the main consideration enshrined in the Family Law Act for deciding matters about children. For more detail see Best interests of the child.