children’s matters

The regulation of children’s matters under Australian law has become a topic of vigorous debates and legal analyses. Thus, legal experts in Australia deem it wise to focus on a federal Status of Children Act in order to improve the regulation of various issues regarding the parentage of children. Per legal experts, it has become crystal clear that Part VII of Family Law Act does not perfectly fit to providing a definition of legal parentage for the purposes of Commonwealth laws in general.

The major objective of Part VII of Family law Act is the parenting arrangements for children when there is a dispute. Though the question of who is or who are a child’s legal parents is of huge importance, in terms of the Family Law Act, the considerations involved in determining what is in a child’s best interest in parenting disputes go beyond the determination of legal parentage. In this connection, the proposed federal Status of Children Act is aimed at providing a clear, consistent and accessible statement of the legal parentage of children for the purposes of all Commonwealth laws and for all courts that exercise federal jurisdiction. It is also expected that the Act will include all the existing parentage provisions in Part VII of Family Law Act. The last but not least, the Act is expected to provide a mechanism for the family courts to transfer parentage in surrogacy agreements.

In confirmation for the urgency of the aforesaid amendments, it is vital to review the Torres Strait Islander practice of customary adoption. This practice clearly shows that parental responsibility is not the same as legal parenthood and is a ‘lesser’ form of recognition as it does not extend beyond the child reaching 18 years of age and it is no automatically recognised for the purposes of inheritance in intestacy.[1] In addition to this, an order granting parental responsibility does not enable the receiving parents to be named as parents on the child’s birth certificates. Birth certificates are significant to a range of legal and administrative issues, for example, enrolling children in school and sporting clubs as well as for applications for drivers’ licenses, passports and marriage.[2]

Another issue that needs to be taken into account in the context of children related matters is declarations of parentage and the operation of Section 69VA of the Family Law Act. The aforesaid Section prescribes that as soon as evidence has been received, the issue of the parentage of a child for the purposes of legal proceedings can be decided by the court by way of issuing a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.[3] The key objective of this provision is to enable applications to support a child support assessment application, especially if a person has been denied paternity.[4] Also, a declaration of parentage under the Family Law Act can facilitates the surrogacy proceedings as well as the proceedings of the former partners of the child’s mother where the child was conceived through assisted reproductive technology.[5]

This notwithstanding, Australian laws set forth a number of limitations for a declaration of parentage under the Family Law Act. Thus, the use of this entitlement is restricted to cases where the application is incidental to the determination of another matter within Commonwealth power. This can lead to a number of complications and obstacles for applicants, for instance, if a parent is seeking a declaration of parentage for the purposes of obtaining a passport for a child that is not ‘incidental to the determination of any other matter within the legislative powers of the Commonwealth’ before the court. Australia’s case law reveals that there is no standalone power to make a declaration of parentage.[6]

 

[1] Succession Act 1981 (QLD) Section 40.

[2] Paul Ban, ‘Customary “Adoption in the Torres Strait Islands Towards Legal Recognition’ (1994) 5 Aboriginal Law Bulletin.

[3] Family Law Act, Section 69VA.

[4] Jamison & Hanley [2012] FMCAfam 218; Lovegood & Creevey [2010] FMCAfam 113; Sachs & Beauman [2011] FMCAfam 11.

[5] Simpson & Brockman [2009] FamCAFC 73; Baker & Landon [2010] FMCAfam 280; Aldridge & Keaton [2009] FamCAFC 229.

[6] Whitely & Ingham [2013] FCCA 869.