{"id":3564,"date":"2012-05-09T10:47:53","date_gmt":"2012-05-09T00:47:53","guid":{"rendered":"http:\/\/sites.thomsonreuters.com.au\/journals\/?p=3564"},"modified":"2012-05-09T10:47:53","modified_gmt":"2012-05-09T00:47:53","slug":"is-an-intended-parent-under-s-60h-a-parent-for-the-purpose-of-the-family-law-act","status":"publish","type":"post","link":"https:\/\/sites.thomsonreuters.com.au\/journals\/2012\/05\/09\/is-an-intended-parent-under-s-60h-a-parent-for-the-purpose-of-the-family-law-act\/","title":{"rendered":"Is an “intended parent” under s 60H a parent for the purpose of the Family Law Act?"},"content":{"rendered":"

FAMILY LAW EXCERPT FROM ALJ (APRIL 2012)*<\/span><\/h3>\n

It is trite law that unless legislation provides to the contrary, a parent is the natural father or mother of a child (see eg Miller v Miller <\/em>[1973] 2 NZLR 380 at 383). In other words, the primary meaning of \u00e2\u20ac\u0153parent\u00e2\u20ac\u009d is a biological parent (B v J <\/em>[1996] FLC 92-716 at 83,614; In the Marriage of Tobin <\/em>[1999] FLC 92-848 at\u00c2\u00a085,938-85,939; Re Mark <\/em>[2003] FLC 93-173 at 78,770). One consequence of this is that a man is a parent of a child, with all the legal consequences that this involves, if the child is born as a result of ordinary sexual intercourse by him, even though it was the intention of both parties at the time of the intercourse that the man not assume any parental responsibility for the child (see ND v BM <\/em>[2003] FLC 98-020).<\/p>\n

In modern times, children born as a result of artificial conception procedures have presented problems concerning parentage which legislation has sought to resolve. It is, however, uncertain whether s 60H (\u00e2\u20ac\u0153Children born as a result of artificial conception procedures\u00e2\u20ac\u009d) of the Family Law Act 1975 <\/em>(Cth) has solved one of these problems or simply added to them.<\/p>\n

Section 60H(1) provides, in short, that if a child is born to a woman as a result of an artificial conception procedure and the woman\u00e2\u20ac\u2122s partner, who is described in the subsection as \u00e2\u20ac\u0153the other intended parent\u00e2\u20ac\u009d, has consented to the procedure, then for the purposes of the Act the child is the child of the woman and the other intended parent. The problem that has arisen here is not simply that the other intended parent can be a woman (for that was intended) but that the \u00e2\u20ac\u0153other intended parent\u00e2\u20ac\u009d is not expressly stated to be the child\u00e2\u20ac\u2122s parent. The question of the interpretation of s 60H(1) was briefly considered by the Full Court of the Family Court in Aldridge v Keaton <\/em>[2009] FLC 93-421. That case concerned a woman who gave birth to a child while living in a same-sex relationship. The Full Court said (at 83,814) in respect of s\u00c2\u00a060H(1):<\/p>\n

The question of whether an \u00e2\u20ac\u0153other intended parent\u00e2\u20ac\u009d is a \u00e2\u20ac\u0153parent\u00e2\u20ac\u009d for the purposes of Part VII is not without some doubt. This fact is of significance when considering s 60B(1) and (2) and s 60CC(2) and (3). We would, consistent with principles of statutory interpretation, give a purposive construction to the section, and regard the birth mother and the other intended parent as parents of the child. But we note other provisions of the Act appear inconsistent with this interpretation.<\/p>\n

In the subsequent same-sex relationship case of Maurice v Barry <\/em>(2010) 44 Fam LR 62, however, Judge Faulks considered the interpretation of s 60H(1) further and concluded that the \u00e2\u20ac\u0153other intended parent\u00e2\u20ac\u009d is to be regarded as a parent of the child, with the result that each partner in the present case has full parental responsibility for the child pursuant to s 61C (\u00e2\u20ac\u0153Each parent has parental responsibility (subject to court orders)\u00e2\u20ac\u009d).<\/p>\n

Anthony Dickey QC<\/em><\/p>\n

* The full citation for this\u00c2\u00a0family law excerpt is (2012) 86 ALJ 163 at 164.<\/p>\n","protected":false},"excerpt":{"rendered":"

FAMILY LAW EXCERPT FROM ALJ (APRIL 2012)* It is trite law that unless legislation provides to the contrary, a parent is the natural father or mother of a child (see eg Miller v Miller [1973] 2 NZLR 380 at 383). In other words, the primary meaning of \u00e2\u20ac\u0153parent\u00e2\u20ac\u009d is a biological parent (B v J […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[179],"tags":[178,127,1846,1943],"class_list":["post-3564","post","type-post","status-publish","format-standard","hentry","category-the-australian-law-journal","tag-alj","tag-family-law","tag-recent-case","tag-same-sex-relationship"],"_links":{"self":[{"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/posts\/3564","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/comments?post=3564"}],"version-history":[{"count":0,"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/posts\/3564\/revisions"}],"wp:attachment":[{"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/media?parent=3564"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/categories?post=3564"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/tags?post=3564"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}