Family Law Council report on "parentage"

Recently the Family Law Council of Australia's "Report on Parentage and the Family Law Act" was released by the Attorney-General. The Council was asked to prepare the Report in light of the increasing diversity of family formation in Australia and the rapidly changing nature of reproductive technology.

In the Report the Council considers the role and meaning of "parent", who is considered to be a parent of a child under the Family Law Act, and the inconsistent, inappropriate and discriminatory outcomes for children on the basis of the status of the people who are raising them.

The Council made nineteen recommendations (summarized):

• One: The Government should conduct a comprehensive revision of the decision making provisions of the Family Law Act to ensure that it provides a consistent approach to decision making for all children regardless of their family form.
• Two: The reference to ‘both’ of the child’s parents should be removed from s 60B(1) and s 60CC(2)(a) of the Family Law Act. In addition, where the word ‘parent’ appears elsewhere it should be amended to include a reference to ‘other significant adults’ or ‘other people of significance to the child’ where appropriate.
• Three: The definition of parent in s 4 of the Family Law Act should be amended to make it clear that the term parent is inclusive and not limited to parents recognised under the law.
• Four: In determining the best interests of an Aboriginal child, s 60CC(3)(h) of the Family Law Act should be amended to include ‘the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the benefit to that child to enjoy that culture with other people who have the responsibility to pass on that culture).’
• Five: Part VII of the Family Law Act should make specific provision for the making of orders in favour of one person or more than two persons where that supports the child’s best interests.
• Six: The Government should introduce a federal Status of Children Act that includes power to make orders about the status of children and legal parentage for the purpose of all Commonwealth laws.
• Seven: The Standing Council on Law and Justice should consider further state, territory and Commonwealth cooperation on harmonising parentage laws nationally.
• Eight: Section 60H of the Family Law Act (artificial conception procedures) be consistent in its approach to single and couple parents and with state and territory laws in this area that make provision about the parental status of donors of genetic material.
• Nine: Section 69U of the Family Law Act be amended to make it clear that the presumptions can be rebutted by other provisions in Part VII Family Law Act.
• Ten: The Government should seek a referral of power from South Australia consistent with the referrals from New South Wales, Queensland, Tasmania and Victoria which provide that the family courts may make a determination of parentage.
• Eleven: The Government should consider amending s 69W of the Family Law Act to make it clear that the court may consider the best interests of the child when deciding whether to make a parentage testing order.
• Twelve: The new federal Status of Children Act (Recommendation 7) should contain provisions specifically dealing with applications for 'transfer of parentage' in surrogacy cases where state and territory Acts do not apply.
• Thirteen: The provisions in the new federal Status of Children Act dealing with the transfer of parentage in surrogacy cases where state and territory Acts do not apply should contain a set of minimum requirements including the following:
• That any order is subject to the best interests of the child;
• Provision is made for when the parties change their minds;
• Evidence of the surrogate mother’s full and prior informed consent;
• Evidence of the surrogacy agreement, including any sums paid;
• Consideration should be given to whether the intending parents have acted in good faith in relation to the surrogate mother;
• Evidence of the intending parent/s actions in relation to ensuring the child will have access to information concerning the child’s genetic, gestational and cultural origins;
• Provision is made that where a surrogacy arrangement involves multiple births, orders must be made in relation to all children born;
• The legality of the surrogacy arrangement should be a relevant consideration for the court when determining parentage.

• Fourteen: Section 60H of the Family Law Act (artificial conception procedures) should be amended so that it is clear it does not apply to surrogacy arrangements.
• Fifteen: Section 60HB of the Family Law Act should be retained (in some form) to recognise state and territory orders that transfer parentage in domestic surrogacy arrangements.
• Sixteen: The Government should pass amendments to:
• Clarify whether the court has power to authorise the taking of a sample from a child without the consent of a parent.
• Amend s 69ZC of the Family Law Act to make it clear that a non-compliant parentage testing report may be admitted into evidence if the court is satisfied it should be.

• Seventeen: The Australian Law Reform Commission conduct an inquiry into the full range of issues raised by international surrogacy and its impact on Commonwealth laws.
• Eighteen: The Government should pass separate legislation to enable the family courts to transfer parental status to Torres Strait Islander receiving parents.
• Nineteen: Birth registration be reviewed and that consideration be given to harmonisation of records so that one search can track births (deaths and marriages) in all states and territories.

The Report can be found at www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/Pages/FamilyLawCouncilpublishedreports.aspx.