Parentage and the Family Law Act 1975

14 Aug 2014

Considers whether the outcome of a family law matter is affected by the way in which a child's family was formed and who is considered to be a 'parent' under the Act.

This report provides a response to the request from the former Attorney-General, Nicola Roxon, for the Family Law Council to consider a range of issues in relation to who is considered to be a parent of a child under the Family Law Act 1975 (Cth) (Family Law Act). The reference responds to the increasing diversity of families in Australia and the rapidly changing nature of reproductive technology and community attitudes to family formation. It also reflects a concern to ensure that as far as possible children are not disadvantaged by the nature of their family or the way in which it was formed.

In its work, Council has considered the complex interaction of the legal and social aspects of families with a focus on the outcomes for children. Council has also considered Australia’s international human rights obligations as well as Australian, state and territory laws.

Council conducted a number of consultations with community organisations, representatives of the Courts and the legal profession, government departments and academics. Council also made a public call for written submissions from interested members of the public. Council conducted its own research through searches of the relevant case law and academic literature. The cases were analysed with the aim of identifying who is a legal parent and whether the current provisions of Part VII of the Family Law Act lead to outcomes for children that are appropriate, consistent and non-discriminatory. In addition, Council identified a range of issues where there was uncertainty in the law and inconsistencies at both the state/territory and federal levels and between different Commonwealth agencies. Council also reviewed the data on the diversity of family forms and structures in Australia, which show that many children are living in families that are not based on the traditional form of a married couple and children who are biologically related to both parents.

Council has taken all of this information into consideration in formulating its response and recommendations. The complete set of recommendations is provided at the end of this Summary.

Council is making a general recommendation that the Australian Government introduce a federal Status of Children Act which would provide a clear statement of parentage laws for the purposes of all the laws of the Commonwealth. The rationale for this recommendation has developed out of Council’s consideration of all the issues raised by the terms of reference. Council’s work on this reference has reinforced its view that the appropriate focus of concern for Part VII of the Family Law Act is resolving disputes about post-separation care and parenting arrangements for children. In decision making in this area, the courts have consistently been guided by the principles of the best interests of the child (as they have developed) and not by the legal status of the adults who vi i i FAMILY LAW COUNCIL - REPORT ON PARENTAGE AND THE FAMILY LAW ACT | DECEMBER 2013 care for those children. In other words, the fact of parentage (or legal parenthood), although obviously important, is not the determinative question in disputes arising under Part VII. In contrast, a range of different considerations may apply to the determination of parentage for the purposes of other Commonwealth laws, including those relating to citizenship and migration, which raise issues that are different from the concerns pertinent to post-separation parenting matters.


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