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28 June 2013

Dr Cressida Limon

Research Fellow

Melbourne Law School

The University of Melbourne

Vic 3010

also by email :

Dear Dr Limon,

Family Law Council terms of reference – Parentage under the Family Law Act 1975 (Cth)

The Family Law Committee of the ACT Law Society thanks the Family Law Council for the opportunity to provide submissions to the above inquiry. Rather than take an academic approach to the terms of reference, the Committee has decided to focus on cases that have arisen for practitioners in the Australian Capital Territory by way of illustrating the difficulties with the law as it stands. We are addressing the first of the Terms of Reference:

Whether the provisions in Part VII of the Family Law Act that deal with the parentage of children lead to outcomes that are appropriate, non-discriminatory and consistent for children.

Example one: Single parents wishing to access Assisted Reproductive Technology (ART)

If we consider these two scenarios:

A)a single woman who conceived a child with a known donor with the intention that they would co-parent.

B)a single woman who conceived a child with a known donor with the intention that he be a donor only and that she would raise the child as a single parent.

Section 11 of the Parentage 2004 Act (ACT) (“the Parentage Act”) sets out the presumptions that arise. Assuming that artificial insemination was used, the donor in each of these cases is conclusively presumed not to be the father of the child born.

However, the Family Court's treatment of the donor in these same cases is less clear. Section 60H(1)(d) of the Family Law Act, 1975 (Cth) (“FLA”) applies only where the woman is partnered. There are obiter comments in Baker v Landon[2010] FMCAfam280 to the effect that donors might not be excluded from recognition as a parent where the mother is single.

This example is problematic for three reasons:

  1. there is possible inconsistency between ACT law and Commonwealth law;
  2. certainly under ACT law and possibly under Commonwealth law the law does nor reflect the lived reality of the family in A).
  3. possibly under Commonwealth law the law does not reflect the lived reality of the family in B).

Example two: What flows from being defined as a parent rather than a person concerned with the care, welfare and development of a child

Case study: A lesbian couple conceived with a known donor. The couple were considered parents according to both the FLA (section 60H(1)) and the Parentage Act (section 11). The parents were wanting to move interstate and the donor made an application restraining them. The parents asserted that there had been an agreement of no involvement. The donor asserted an agreement for him to spend regular time with the child. The parents were facing the very real possibility of being restricted in their freedom of movement, despite the fact that they were both parents and the donor was not. The donor appeared to be in a superior position to a hypothetically similar applicant concerned with the care, welfare and development of a child of a heterosexual couple. The parents in this case were distressed that a donor in this position appears to enjoy the "rights" of parenthood (including restraining relocation) without the responsibilities (under the child support legislation he would not be liable for child support).

Case study: Grandparents have long term care of a grandchild and are effectively exercising parental responsibility. If either of the parents make an application to the Court the legislation prescribes the Court's decision-making in a way that does not reflect the reality of the child's experience. For example, the considerations under the FLA, section 60B referring to parents do not recognise the role of the grandparents in this particular child’s life.

There needs to be some clear legislative direction about firstly, who is to be defined as a parent and, secondly, what parameters the Court may apply when considering applications from people concerned with the care, welfare and development of the child. Otherwise, it is difficult for lawyers to provide advice, which could in fact work against a child's best interests. For example, the prudent advice to the couple in the first case study, had they sought such advice at the time of the child's birth, and given the uncertainty about how the family courts treat applications by donors, would be to limit the contact with the donor so there was no established relationship to consider should they later want to move.

Example 3: The number of parents

The Parentage Act says that a child cannot have more than two parents at any one time (section 14). However, there may be some situations where the child's best interests would benefit from the capacity to recognise three parents.

Case study: a lesbian couple who each have a biological child. The couple are both legally recognised as their parents, both in ACT law and under the FLA. The children have the same biological father who has been actively involved in their lives since before their conception. The children have his surname. He is referred to by everyone as their father, spends extended periods of time with them on a regular basis and is an equal participant in all decisions in relation to their lives. As the law stands at present he cannot be legally recognised as their parent, when he clearly is a parent from a social and relationship perspective.

Child Support

The above examples raise the issue of child support. It is an established principle that the liability for child support is not dependent upon spending time with a child. The feature of most cases which deal with the issue of whether a man is a ‘parent’ of a child if the man was not in a relationship (de facto or married) with the mother at the time of conception, is that the man is usually seeking a declaration from the Court thathe is not a parent liable to pay child support under the Child Support (Assessment) Act 1989 (“CSAA”).In BM and DA [2007] FMCAfam770the Court considered the biological parent of the child within the meaning of the FLA and/or the CSAA. In this case the Mother asserted that the child was conceived through intercourse and therefore the Father was a parent for both purposes of the FLA and the CSAA. The father asserted that the child was conceived after the breakdown of the relationship, through artificial insemination (claiming that the mother had impregnated herself with a sperm sample after the breakdown of the relationship). The Court ultimately accepted the father’s evidence.The Court in this case found that the man was not a parent for the purposes of the CSAA. The Court similarly found that the man was not a parent under the FLA, but Henderson FM (as she then was) noted that the issue of whether the man was a ‘parent’ under the FLA is less clear. Henderson FM found that the definition of ‘parent’ for child support purposes is different from that under the FLA. The Court referred to Fogarty J’s comment in Re B and J [1996] FLR 186 at 197that ‘a person who is not an Assessment Act parent may still be a Family Law parent’. This point is pertinent when considering the Court's approach to applications by donors to spend time with the child and also in Example 3 above where the reality is that there are three parents, one of whom will not be liable for child support.

Brown J in Re Mark [2003] FamCA 822similarly held that Section 60H of the FLA does not purport to be an exhaustive definition of a ‘parent’ but instead enlarges, rather than restricts the categories of people who may be regarded as the child’s parent including non-biological parents.

Example 4: Parents who do not fit the legislation

Consider these two cases:

1)A lesbian couple who were intending to carry a child each, but using each other's eggs, so that they would each have either a genetic or a gestational relationship with each child. Under ACT law they would each be conclusively presumed to be a parent and conclusively presumed not to be a mother under the Parentage Act. They would not have a problem under section 60H. This is really an example of where the ACT law needs amendment.

2)A couple in which the man is transgendered. They have a child who was carried by his female partner conceived using his egg. They face the same uncertainty under the Parentage Act – that is, he is conclusively presumed to be a parent while being conclusively presumed not to be a mother. As with the lesbian couple carrying each other's genetic child, his legal parentage is clear under s60H so it is the ACT legislation that needs amending, not the FLA.

Example 5: Parents who choose to use overseas commercial surrogacy

Parents who use overseas commercial surrogacy cannot apply under the Parentage Act. Division 2.5 of the Parentage Act only applies if the child was conceived as a result of a procedure carried out in the ACT (section 24).

Commercial surrogacy is illegal in the ACT (see section 41, Parentage Act). The geographical nexus of the offence is by way of residence in the ACT (section 45, Parentage Act). It may be that one of the commissioning parents of a child born of an overseas commercial surrogacy arrangement provided the genetic material. This parent is able to make an application for citizenship by descent for the child and to bring the child to Australia. In the ACT, the other intended parent, being the partner of the parent who provided the genetic material,falls outside the Territory legislation and must apply to the Family Court for a declaration of parentage and/or parenting orders.[1] This leaves the Family Court to consider the consequence of the parents breaching Territory law by entering into a commercial surrogacy arrangement.

From the child's perspective, the best option may be for the law to recognise the fact that the commissioning parents (or intended parents) are legal parents for the child. In this case the child's best interests may be at odds with the prohibition against commercial surrogacy.

Example 6: Single parents wishing to use surrogacy

In order to apply for a parentage order where altruistic surrogacy is involved, the Parentage Act section 24(c) requires among other things that there are two intended parents, and at least one of the intended parents has a genetic link to the child (section 24(d)) making single applicants ineligible, even if they have a genetic link to the child.

Example 7: Ownership of embryos

Case study: A married couple decided to arrange IVF using their sperm and ova, as the mother was undergoing treatment for cancer. The embryos were stored. On the consent forms the parties responded to the question about ownership of the embryos in the event of separation by ticking the boxes that said they would agree jointly to the use of the embryos. The parties separated and then could not agree about use of the embryos.

There is no clarity about the status of the embryos at family law. They are neither children nor property. It is important for the legislation to lay out a pathway for resolution of such disputes.

Example 8: Altruistic surrogacy and registration of birth

Case study: A couple in NSW entered into an altruistic surrogacy arrangement. The process in NSW is that the birth mother must be initially registered on the birth certificate until such time as an order is made by the Supreme Court of New South Wales for a parentage order declaring the intended parents to have parental responsibility for the child.The NSW birth certificate can then be amended to reflect the orders of the Supreme Court. There are several NSW country towns close to the ACT and NSW residents regularly use hospitals in Canberra. If the subject child was born in the ACT, the legislation in the ACT does not allow the Office of Regulatory Services to change a child’s birth certificate if the parentage order is made in another state or territory. The birth mother must give birth to this child in NSW. This is an example of the inconsistencies and/or gaps in State and Territory legislation which potentially give rise to inconsistent outcomes for children. Fortunately in this case, the parties sought legal advice before the baby was born.

Conclusion

The Family Law Committee of the ACT Law Society stresses the importance of having clear, consistent legislation in plain English. Ideally there will be a consultation with the communities who are affected to make sure that the legislation matches the diversity of lived experiences. It is important to work towards legislation that is consistent across the federal and State and Territory jurisdictions.

We await with interest the report of the Family Law Council.

Yours sincerely,

Noor Blumer

President

ACT Law Society

[1]See Millbank, Jenni, “The New Parentage Laws in Australia: Cautious Regulation or ’25 Brick Walls’ (2011) 35 Melbourne University Law Review 35