The Changing Nature of the Family in the 21st Century Professor Jenni Millbank, UTS

Who are the non-parents adults taking on parental role for children born into a partner’s previous relationships, ie step-parents men who believe themselves to genetic fathers but subsequently discover they were not men who parented children born through donor sperm prior to reforms ‘legitimating’ such children adults who take on the care of children from within their extended family when primary caregivers fail extended kinship and care networks, including customary adoption, in Aboriginal and Torres Strait Islander communities non-birth mother in same sex couples formed through assisted conception prior to 2008 reforms (and some since) intended parents/genetic parents in surrogacy arrangements prior to 2008 reforms (and many since) gay men in co-parenting arrangements with women where a parental role is intended or formed with more than 2 adults

Psychological parent/loco parentis Stranger Blood stranger Stranger in blood Intervener Third party Mother’s former partner Biological parent’s partner “father/mother figure” “parent” s 65C(c) any other person concerned with the care welfare and development of the child Functional parent Non biological mother/parent Someone with no biological connection to the child Significant adult Same-sex co-parent Co-mother Non-parent Non biological person

Marriage of Drew; Lovett (Interveners) (1993) 16 Fam LR 536 “Unless the welfare of the child otherwise requires it, custody of a child or children ought to be given to a parent rather than a member of the extended family or to a blood stranger”. Overturned by Full Court in Rice & Miller (1993) 16 FLR 970 “the fact of parenthood is to be regarded as an important and significant factor in considering which of the proposals best advances the welfare of the child. We would reiterate, however, that the fact of parenthood does not establish a presumption in favour of the natural parent nor generate a preferential position in favour of that parent from which the Court commences its decision making process. Each case must be determined according to its own facts, the paramount consideration always being the welfare of the child whose custody is in question.”

Joseph Goldstein 1984 interview One of the critical questions in law ought to be, who are the child’s parents? It is a mechanical notion that just because of a biological connection the adult is the parent. Early common-law cases, though they recognize the notion of the blood tie, came to accept its significance because of the function that was attached to it, that is, an expectation that those with inherent biological connection would be the source of affection and nourishment and care on a continuing basis…The blood tie has become a shorthand, detached over time from its underlying function…law can come to be misapplied when the underlying reason for it gets lost.

Who is a ‘parent’, ‘extended family member’ or ‘stranger’? No definition in s 4 FLA except that ‘child’ includes adopted, and separate more limited defn in assisted conception s 60H Ordinary meaning? 20 years ago Full Court in Tobin said parent limited to ‘ordinary meaning’ biological parent unless legislative provision to include. We are still there. Donnell & Dovey [2010] FamCAFC 15 expressly rejected loco parentis and indigenous kinship as satisfying ‘parent’ under FLA despite s61F. But affirmed that relationship of non parent may be as important to child as a parent. Child’s perspective?

H v Minister for Immigration and Citizenship [2010] FCAFC 119 The word “parent” is an everyday word in the English language, expressive both of status and relationship to another. Today, as the Citizenship Act itself recognizes, not all parents become parents in the same way…This is not to say that parents do not share common characteristics; everyday use of the word indicates that they do. Being a parent within the ordinary meaning of the word may depend on various factors, including social, legal and biological. Once, in the case of an illegitimate child, biological connection was not enough; today, biological connection in specific instances may not be enough…Typically, parentage is not just a matter of biology but of intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own.

s60H ‘child’ in assisted conception includes mothers consenting de facto partner Aldridge & Keaton [2009] FamCAFC 229 Section 60H uses the expression “person” and “other intended parent” not “parent”. …We think from reading the Senate report, it was intended that following amendments to s 60H that children… regardless of the circumstances of their conception or birth, should have the same rights, protections and privileges under the Act to receive proper parenting from either a biological parent, or that biological parent’s partner (including a same-sex co-parent), as biological children born to men and women who have been legally married, living in a de facto relationship or who have never lived together. We are not sure the legislation has had that effect. …further legislative amendment may be necessary to clarify the non- biological person’s status as a parent.

Does being the ‘child’ of a person mean the person is a ‘parent’ of the child? Maurice & Barry [2010] The drafting may fall short of ideal. It is difficult to imagine a man (or person) on an ACTION Bus (let alone a man on the Clapham Omnibus) responding other than positively to a question about whether if a child was a child of a person that person was not the child’s parent. Lusito & Luisto [2011] …it would be artificial and contrary to the clear intention of the 2008 amendments to the Act …if [X]’s primary carer, Ms D Lusito, a person regarded by him as a parent for all of his life, a person regarded as such by his biological mother, was not treated as a “parent” in the analysis I am required to undertake under Part VII of the Act, an analysis designed to make orders based on a child’s best interests.

Minister of Home Affairs and another v Fourie [2005] Sachs J      Our families are suffused with history, as family law is suffused with history, culture, belief and personality. For researchers it's a paradise, for judges a purgatory.