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Kerry Anne Aguilar

Kerry has been practicing exclusively in family law since 2017. Kerry has a wealth of experience in complex family law matters relating to divorce, separation, children and parenting disputes; and…
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Parenting matters and the Australian family law system can be extremely complex.

A contributing factor to this complexity is the way in which a family can be created and exist; and this has evolved over time.

We’ve come a long way from the traditional biological mother and father of a child, and now parents can be created through adoption, surrogacy, step-parenting, de facto relationships, and assisted reproductive technology.

While the way people can have children and become parents has evolved, the Family Law Act 1975 hasn’t evolved quite as quickly. This can create complications in determining who has parental responsibility, especially in regard to non-biological children and parents.

In this piece, we’re going to discuss parenting and parental responsibility in Australia, including why it matters, who can have parental responsibility and parenting orders.

If you play a crucial role in the care and wellbeing of a child but you’re not sure what your legal responsibilities and obligations are, keep reading to learn more about parenting in Australia.

What is a parent?

The term “parent” was traditionally used to describe the biological mother or father of a child, however in the Family Law Act 1975, which focuses on the responsibilities of parents and rights of children, the term “parent” is not defined.

This lack of definition has meant that courts have had to interpret the meaning of the term in relation to parental responsibility and obligations in various scenarios.

Biological links between a person and a child may have automatically granted parental responsibility to a person once upon a time, however, it’s not quite as simple as that anymore. This can be seen in instances involving children that are born via assisted reproductive technology. A sperm donor may technically be a biological parent of a child, however, if they donated their genetic material without the intent or expectation of having any involvement (as a parent) in the potential child’s life, then they will not have parental responsibility for that child.

Understanding who can legally be a parent of a child is important as it helps to decide who has parental responsibility for a child.

cartoon image depicting a man and a woman discussing their child's needs.

What is parental responsibility?

The Family Law Act 1975 defines parental responsibility as the powers, responsibilities and authority, which by law, parents have in relation to children. Essentially, a person with parental responsibility has the obligation and authority to make important decisions about that child’s life and future.

Some of the decisions a person with parental responsibility will need to make will be in relation to:

  • Where the child will live;
  • Medical treatment for the child;
  • Cultural and/or religious interests of the child;
  • Where the child may go to school;
  • The child’s name.

These decisions will have a long-term impact on the child, so it’s important that the decisions are made with the child’s best interests in mind, and they should be made by the right person/people.

Under Australian Family Law, there is a presumption of equal shared parental responsibility – meaning that both parents will be responsible for making decisions in relation to the welfare of the child. Sole parental responsibility may be awarded in circumstances where it is not in the best interest of the child to have both parents making long-term decisions for them – such as when the child has been exposed to family violence by one of the parents.

Parental responsibility applies until a child turns 18, and if the parents of the child have separated or divorced before this, the parental responsibility of the child will not automatically change.

Who can have parental responsibility?

As we mentioned earlier, the ways in which families are created has changed significantly in recent history, so how does this affect parental responsibility?

cartoon image depicting same sex couple, a child, and the sperm donor that helped to create that child.

Can a sperm donor have parental responsibility for a child?

A sperm donor could be considered to be a legal parent (and have parental responsibility) under certain circumstances in Australia.

The laws by state vary, however, in New South Wales (NSW Status of Children Act 1996), Queensland (Queensland Status of Children Act 1978) and Victoria (Victoria Status of Children Act 1974), sperm donors who are not married or in a relationship with the recipient will not legally be parents of a child that is a result of their donation.

However, in recent history (2019), the High Court of Australia ruled that a sperm donor was the legal parent of a child that was conceived through IVF.

In the case of Masson v Parsons, Masson donated his semen to his friend – Parsons – so that she could conceive a child in 2006. He had the presumption that he would be involved in the child’s life and at the time of conception, Parsons was not in a relationship. Masson was present at the birth of the child and was named as a parent on the birth certificate.

Masson maintained a strong and involved relationship with the child that was conceived with his sperm, and even developed a close relationship with a second child Parsons had with an anonymous sperm donor. Both children referred to Masson as Daddy.

In 2015, Parsons and her partner wanted to relocate from Australia to New Zealand and take the children with them, to which Masson disagreed and sought to stop this from occurring and be recognised as a legal parent.

Masson sought an order for shared parental responsibility between himself and Parsons and her partner in the Family Court of Australia. Whether Masson was considered a parent of the child was the main question at hand. The Court found that Masson was a parent of the child, as he qualified as a parent within the ordinary meaning of the word, as well as had played an active role in spending time with the child, supporting the child and making decisions for them.

Parsons appealed this decision, and the decision was overturned in Full Court of the Family Court. Masson was held to not be the parent of the child as Parsons successfully argued that the State law surrounding sperm donors and artificial insemination should be upheld.

This decision was then appealed in the High Court of Australia, who determined that the previous decision that the NSW state legislation should be applicable, was incorrect. Instead, they determined that the definition of parent should follow the ordinary meaning of the word parent, as well as take into consideration the individual facts and circumstances of the case. The close relationship Masson had with his biological child and the intention of him being involved in the child’s life made him more than a sperm donor.

While this does create an air of uncertainty for the rights of parents in donor situations, it also shows that the unique circumstances of the situation played a big role in the final outcome.

Can de facto partners have parental responsibility?

In the case of Masson v Parsons, Parsons’ de facto partner was not held to be the legal parent of the child and did not have parental responsibility for the child. One of the deciding factors for this was that they were not in a relationship with Parsons at the time of conception.

According to Section 60H of the Family Law Act 1975, if a woman has a child via an artificial conception procedure, while they are in a relationship – de facto or marriage – and the woman, her partner (male or female) and the donor of the genetic material, all consent to the procedure, then the woman and her partner will be the parents of the child.

In order for a de facto partner to be considered the legal parent of the child, they must be able to prove that they were in a relationship with the other parent at the time of conception.

Is a step-parent a legal parent?

You’re a step-parent to a child according to the Family Law Act 1975, if you:

  • Are not the biological parent of a child in your care;
  • If you are, or were married to or a de facto partner of one of the child’s biological parents; and
  • You treat the child as a member of the family formed with their parent, or you did so while you and their parent were together. 

While you may treat a stepchild like they are your own biological child, you are not automatically granted legal parental responsibility for a stepchild. After biological parents separate, they will have shared parental responsibility, though they may apply for sole parental responsibility depending on their circumstances.

For a step-parent to get parental responsibility for a child, they will need to either adopt the child or apply for a parenting order.

cartoon image depicting parents and a child meeting up so the child can go to the other parent's house.

What are parenting orders?

A parenting order is made by a court in regard to the parenting arrangements for a child. These orders can be made based on agreements between parties or after trial or hearing in the court.

The arrangements that may be dealt with in a parenting order include who the child will live with, how much time the child spends with each parent and other people in their lives, parental responsibility, and various other aspects relating to their care.

If you’ve played an active role in a child’s life but are not a biological parent of a child, you may be able to apply for a parenting order. According to Section 65C of the Family Law Act 1975, parents, the child, grandparents or a person concerned with the care, welfare and development of a child may apply.

It’s not uncommon for a person other than the biological parent of a child to make a parenting order application. There are many reasons a child may be in the care of someone else. However, while it’s not uncommon, you must be able to establish that you have become a person that is concerned with the care, welfare and development of the child.

There is no exact criteria that is used to determine that a person is concerned with the care, welfare and development of a child, rather the court will focus on the facts of each individual case. Some of the things they will consider include:

  • The nature of the child’s relationship with you;
  • Your ability to meet the child’s needs; and
  • How changing their circumstances may impact the child.

The aim of the court is to ensure the child’s best interests are put first.

How we can help

If you’re not sure whether you’re considered a legal parent to a child or you’ve played a vital role in the development and life of a child, but you don’t have parental responsibility, we can help you.

As one of Australia’s leading family law firms our experienced team is well-versed in various parenting and children’s matters. We can help you understand your legal standing in parenting matters, provide you with advice and options, and ensure that the needs of your child are always put first.

You can discuss parental responsibility or any other parenting matters with our child custody family lawyers today during a free consultation.

Call Unified Lawyers on 1300 667 461 or book your consultation using the button below.

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Kerry Anne Aguilar

Kerry has been practicing exclusively in family law since 2017. Kerry has a wealth of experience in complex family law matters relating to divorce, separation, children and parenting disputes; and financial matters including but not limited to property settlements, spousal maintenance, child support agreements, prenuptial agreements, cohabitation agreements and postnuptial agreements.

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