The Family Law Act 1975 (Cth) (FLA) makes various provisions as to parenthood and a “child of the marriage” and importantly imposes specific obligations on the parents of a child. Relevantly, the Act provides that pending any orders being made by the Family Court to the contrary, that parents each have parental responsibility for their child/ren and have standing to apply to the court for parenting orders (although standing is not limited just to parents and can include grandparents and any other person concerned with the care, welfare and development of a child).

The important question then is: who is a parent of the child?

In most cases, there is no dispute as to parenthood, but circumstances can arise where the issue of parenthood is a real one. Historically, the issue of parenthood was predominantly confined to child support cases where a parent (usually the alleged father) disputed that he was the father for the child. However, in recent years there has been an increase in family law cases disputing parenthood in part driven by the technological advances in reproductive technology and increased use of arrangements like surrogacy to create families.

Determining the parents of a child is now a question of interpreting both State/Territory legislation and federal legislation which may apply. In general, State legislation protects the anonymity of the sperm or egg donor as being merely a biological process, while the FLA, in particular, emphasises the ongoing supportive role of a parent towards the child. Family structures have become increasingly complex as a result.

Statutory presumptions

The FLA makes a number of statutory presumptions which prevail in most cases when determining who is the parent of a child, namely, where a child is born to a married couple (either before or after marriage), or a de facto relationship, or simply being registered as a parent on a child’s birth certificate.

There is a presumption in the Family Law Act 1975 (Cth) that if a child is born to a woman while she is married that child is presumed to be a child of the woman and her husband: s 69P, FLA. In Western Australia (WA), for children born not of a marriage the equivalent provision in the Family Court Act 1997 (WA) is s 188.

This presumption also applies to parties in a de facto relationship where the woman cohabited with a man to whom she was not married “at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth”: s 69Q, FLA. In WA, for children born not of a marriage the equivalent provision in the Family Court Act 1997 (WA) is s 189.

The Family Court, when considering whether the presumption should be upheld, will also have regard to who is named as the parents on the birth certificate signed by the parties or whether the man has executed an instrument acknowledging that he is the father of that child: ss 69R and 69T, FLA. In WA, for children born not of a marriage the equivalent provisions in the Family Court Act 1997 (WA) are ss 190 and 192 respectively.

In most cases, these presumptions provide the answer to the question of parentage, but special circumstances can affect children and the answer of parentage for such children may need to be determined by reference to the FLA and relevant State legislation (eg, legislation dealing with adoption, children born following the use of artificial reproductive technology, surrogacy and child welfare are all State-based and differ as between each State and Territory).

Paternity

If a dispute arises in family court proceedings as to the paternity of a child who is not a child adopted by the parties or born by artificial means, the court can order parentage testing of the parties to determine if the child is a child of the father: s 69W, FLA. In WA, for children born not of a marriage the equivalent provision in the Family Court Act 1997 (WA) is s 195. This order can be made on the court’s own initiative or on application in certain circumstances and can be made subject to terms and conditions: s 69W(2), FLA. In practice this order would be for a blood test or DNA testing: reg 21C of the Family Law Regulations 1984 (Cth). The court cannot order parentage testing where this is the only order sought. The order can only be made in the context of other related family court proceedings (eg, parenting or child support proceedings are the most common).

Once the court is satisfied as to parentage, the court can make a declaration that is conclusive evidence as to parentage. Specifically, s 69S, FLA provides that if any prescribed court in Australia has made a declaration as to parentage under s 69VA, FLA this declaration is conclusive for all the laws of the Commonwealth, including for the purpose of child support issues. The equivalent provision in the Family Court Act 1997 (WA) to s 69S, FLA is s 191. For obvious jurisdictional reasons, there is no equivalent provision to s 69VA, FLA under the WA legislation.

See Paternity.

Artificial conception and surrogacy

Arrangements for children born by artificial conception or through surrogacy arrangements (altruistic or international commercial) are governed primarily by State legislation (the approach differs as between states). There are also specific provisions in the FLA applicable to these cases.

The term “artificial conception” refers to a number of methods by which a child may be conceived by means other than through sexual intercourse. A child may be conceived using semen from a male donor, an egg from either the mother or another woman, or both components from parties who are not the child’s “parents”. Such a child may in fact not be biologically related to either of her/his parents, yet they may have wanted to take on the responsibilities of parenthood. Both State and Federal legislation applies to determination of parentage.

Artificial conception should be distinguished from surrogacy arrangements in both a technological and a factual understanding. Assisted reproductive technology (ART), ART may enable a person or couple to commission a woman to act as a surrogate mother using sperm and eggs donated by third parties. Surrogacy arrangements in Australia must be altruistic and must be accompanied by formal agreements and the giving of legal advice.

See Children born as a result of artificial conception and Surrogacy.

Adoption

The process by which a child can be adopted is governed by State legislation and the approach differs as between States and Territories. WA is the only state in which adoption applications are heard in the Family Court of WA — this is because that court is a State court. In other States, applications are determined in a different court. For example, in Victoria it is currently the County Court although the Supreme Court also has jurisdiction. The extent to which the court is involved in the adoption order also varies considerably as between states.

Once a child is adopted, the definition of “child of a marriage” is extended by s 60F of the FLA to generally include a child adopted since the marriage by the husband or wife, or by either of them with the consent of the other.

See Adoption.