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 nonbiological 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.