In the complex social structure of a present-day modern family, the concept of parental responsibility carries a curious look and requires an unambiguous understanding from the perspective of expectations of the Family Law Act 1975 (Cth). The parenting order confers parental responsibility for a child on a person to the extent of duties, powers, responsibilities, or authority in relation to the child. The law requires, in substance, and so far as it is relevant, that when making a parenting order in relation to a child, an application of a rebuttable presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This includes the child having the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
Curiously enough, the issue of a child born because of artificial conception procedures while the woman was married to, or a de facto partner of, another intending person, obviously with the consent of the other intended parent for the artificial conception procedure, the child shall be a child of the woman and of the other intended parent.
The law warrants that the a woman who is married to a man has undergone a fertilisation procedure as a result of which she becomes pregnant; the husband is presumed to be the father of any child born as a result of the pregnancy even if he did not provide any or all of the sperm used in the procedure, but only consented to such a procedure; and in case of woman she will be the mother of the child as a result of such pregnancy even if she did not provide the ovum used in the procedure.
In an interesting High Court of Australia decision, section 60 H of the Family Law Act was examined by the court. The court adopted a broader approach, interpreting being a flexible and expanding in nature rather than restrictive and narrow. The court included the categories of the people who could be a child’s parents, and that the definition was not exhaustive of the classes of persons who could qualify as parents. The peculiar facts of the case included: Mr Mason was registered on the child’s birth certificate as a parent. Such registration satisfied the presumption of parentage under the law, which arises from the name of the parent as recorded on a birth certificate, notwithstanding the fact that the presumption was rebuttable in law. Mr Mason gave his semen on the express or implied understanding that he would be the child’s parent. It was always understood that Mr Mason would care for the child financially and emotionally, which he certainly did AND, the child identified Mr Mason as a father and referred to him as ‘daddy’
The court held that Mr Mason was the child’s parent in accordance with the ordinary meaning of the word, or at least a person concerned with the care, welfare and development of the child. Curiously the full court of the Family Court of Australia held that Mr Masson could not be the legal parent of the child because of the interpretation of the child under the laws of NSW which provided that if a man provided sperm for the purposes of artificial insemination to a woman to whom he was not married, it was presumed that he was not the father of the child.
The High Court, however, held that the Family Law Act did not define the term ‘parent’ and ‘a court will not construe a provision in a way that departs from its natural and ordinary meaning unless it was clear that the Parliament intended it to have some different or restrictive meaning. Such an indication was not present in the interpretation of these definitions. The majority of the judges concluded that the definition of parent was not obscure or ambiguous or readily capable of more than one interpretation.
