Who is a parent under the Family Law Act? You might be surprised to know that ‘parent’ for the purposes of the Family Law Act, takes on its ordinary everyday meaning except when and if an applicable provision is otherwise provided.
There are presumptions of parentage contained within the Family Law Act arising from conception during marriage, cohabitation, registration of a birth, a judicial finding that a person is a parent of a child and signing an acknowledgment of paternity.
A child conceived by artificial conception is covered by Section 60H of the Family Law Act that provides if a woman was either married or a de facto partner of another person at the time the artificial procedure was carried out, and if the procedure was carried out with the consent of the partner, the child is the child of the woman and her partner. This section does not apply if a woman has completed artificial conception on her own.
Similarly if you are in a de facto relationship and you have a child or the child is adopted by you then you are deemed to be a parent.
The most recent case to determine ‘who is a parent’ for the purposes of the Family Law Act was the 2019 High Court case of Masson v Parsons. In this case the High Court determined that a man who donated his sperm to a female couple was a father for proposes of the Family Law Act.
In this case the man had been involved in the child’s life and had an agreement with the female couple that he would provide financial support and be involved in the child’s life including having input into decisions regarding education, welfare and health. From birth the child had lived with the female couple and the father continued to be involved in the child’s upbringing. The female couple sought to move to New Zealand and the father opposed the relocation in the Family Court.
The case made its way to the High Court after a series of appeals. The outcome reached by the High Court determined that to characterise the father as merely the child’s sperm donor would in effect ignore all but one of the circumstances of the case. The father was determined to be a parent for the purposes of the Family Law Act.
Similarly to the Family Law Act but more prescriptive the Child Support Act defines a parent as a biological parent, adoptive parent and a person who is determined to be a parent under the Family Law Act with particular reference to artificial conception procedures.
State law determines the parentage of children born out of surrogacy arrangements (altruistic surrogacy as commercial surrogacy is illegal in NSW).
If you require any assistance with adoption, parenting applications or other family law matters please contact our friendly team at Watts McCray Lawyers today.
