Family Law Act

Legal Complexities and Problems of Part VII of the Family Law Act

Part VII of the Family Law Act provides that it is impossible for a child to have more than two parents. Both the Commonwealth and State laws do not contain specific clarifications on the issue in question. To that end, it is essential to explore how the judges approach this problem. Specifically speaking, the court in Groth & Banks ascertained that the fact that a child has two parents who are his or her biological progenitors permeates the language of the Act.[1]

The primacy of biology in the ascertainment of who is a child’s parents has been displaced for many years by reason of various State and Commonwealth laws reacting to the challenges of artificial reproductive technology. However, it is also pointed out that the language of Part VII provides an insufficient recognition of the realities of certain modern families. Possible complexities and questionable matters may arise in cases where children are born from an assisted conception procedure. The issue of whether it is in the best interests of the child to spend time with a person is separate from the legal recognition of that individual as a parent.

In view of the above, Part VII of the Family Law Act is often considered overbroad and thus necessitates the introduction of well-elaborated and narrowly tailored revisions, amendments or interpretation. A proposal should be made for the adoption of legislative guidelines concerning the application of Part VII to non-parents who are engaged in the care, development and welfare of their children, in order to make it possible for lawyers to ensure better quality of legal advice regarding this. Another suggestion pertains to piecemeal amendments to the Family Law Act. The latter approach implies that there must be a complex and convoluted drafting of the Family Law Act by emphasizing changes to its Part VII. According to Women’s Legal Service NSW, the underlying tenets of the proposed revision of Part VII of the Family Law Act should be that all decisions regarding children should rest upon the best interests of the child and the law should be directed at the elimination of all forms of discrimination, including discrimination based on family type, sexual orientation and relationship status. Also, it is often debated that child development experts must be engaged in any revision of Part VII of the Family Law Act.

As a matter of Australian law, the present legislative framework does not adequately reflect the environment of family life and parenting for many children in Australia. Nor does the current law provide an understanding of children’s perspectives of who is a parent. Different outcomes in major Australian law cases prove this contention. Thus, in Mulvany case, a father took part in raising a 6-year-old child from birth, but was not considered the child’s parent.[2] By contrast, in Baker & Landon case, the applicant had had little engagement in the child’s life.[3] Nonetheless, the court recognised the applicant as a parent because he was capable of showing that he had been in a de facto relationship with the child’s mother at the time of the child’s conception from IVF, and, in the ultimate analysis, his parental status made it possible for him to receive benefits based on the presumption of equally shared parental responsibility for the child with the child’s mother. Here, a mental note should be made that the discrepancy between the existent Part VII framework and the social environment of family life for most children has given rise to problems for policy and law decision makers, as well as created the uncertainty concerning the application of specific provisions (such as Section 60CC(2)(a)) to non-legal parents. More specifically, the present legal framework of Part VII establishes disparate procedures for considering the best interests of a child depending on the characteristics of the child’s family.

[1] Groth & Banks [2013] FamCA 430.

[2] Mulvany & Lane [2008] FMCAfam 473.

[3] Baker & Landon [2010] FMCAfam 280.