Some may be surprised to learn that the word Parent is used hundreds if not thousands of times in the Family Law Act but is not defined by the Act.
When a word is not defined, it takes on its ordinary meaning. The ordinary meaning is said to be “The mother or father of a person”. The issue of parentage is often not controversial. But things are not always straightforward when conception arises from a medical procedure, or the child is born by a surrogate.
Presumptions
While the Family Law Act may not define who is a Parent, there are a number of presumptions which apply regarding parentage. For instance, a party will be presumed to be a parent in the following circumstances:
- The parties were married at the time of birth
- The party’s name appears on the birth certificate
- The parent acknowledges parentage by Statutory Declaration
- A Court has made a declaration
- A couple cohabited or were married from 44 weeks prior to the birth of the child and ending not less than 20 weeks before the birth of the child.
What happens if parentage is disputed
If there is doubt about paternity of a child, the Court has the Power Pursuant to S69W of the Family Law Act to compel putative parents to undertake DNA testing to determine who is a biological parent of a child.
The result of the biological test will have significant consequences – including a declaration about parentage, parenting orders, child support assessment and a amending the child’s birth certificate.
Children conceived by medical procedure
There are a number of presumptions that apply in circumstances where children are born as a result of medical procedures. For instance:
- S14 Status of Children Act 1996 (NSW) – Where a child is conceived via sperm donation, and the sperm donor is not the spouse of the mother, the sperm donor is not the parent of the child.
- S60H Family Law Act – If a woman is in a relationship at the time she undertakes artificial conception, provided the spouse consented to the procedure, the woman and her spouse will be the parents of the child for the purposes of the Act.
- S60HB Family Law Act – The Court is able to make declarations in favour of intended parents when a child is born via surrogacy.
Case examples
While the above reflect the Legislatures intent to keep up with the developing methods of conception, there have been some recent cases which have highlighted that there is no one size fits all when it comes to Family Law.
In the High Court case of Masson v Parsons & Ors [2019] HCA 21, a single mother conceived a child with a sperm from a friend. Following the birth, the donor played a role in the child’s life. It was evident for both his actions and that of the mother that this man provided his sperm as more than a mere donor, and the presumption in the Status of Children Act should not apply. The High Court made a declaration of parentage in favour of the biological father.
In the very factually interesting case of Seto & Poon [2021] FamCA 288, an informal (illegal paid) surrogacy arrangement was negotiated between two married couples, the intended Parents (couple A) and the surrogate Wife and her Husband (couple B). Husband A and Wife B attend an IVF clinic pretending to be married. Wife B conceives using her eggs and Husband A’s sperm. Wife B gives birth to twins but then demands more money for her Surrogacy. Orders were made for the child to live with Couple A, and a declaration was made that Husband A was a parent for the purposes of the Act.
If you have questions regarding any aspect of family law, please contact our friendly family law team today on (02) 4929 4499 or book online. Headed by our Senior Lawyer Kasey Stewart, an Accredited Specialist in Family Law, you can trust our family law team to help you achieve the best results possible, for you and your children.
