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Who May Apply For Parenting Orders?

In our previous article ‘Who is a Parent??’, we touched on the importance of being a ‘parent’ under Australian Law, and the legal consequences associated with paternity.

Naturally, a good way to follow up such an article is with an explanation of why, when seeking Parenting Orders from a Court, it does not matter who a child’s parents are at all.

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Wait?! Am I a sperm donor or a parent?

In our previous articles “Who is a Parent?” and “Parenting Orders and What You Need to Know” we discussed what it means to be a parent under Australian Law, and the fact that people who are not ‘parents’ are still able to apply for Parenting Orders in relation to children.

Both of these issues were recently considered earlier this year by the High Court of Australia in Masson and Parsons & Ors. The matter made headlines due to the relative rarity of Family Law issues being heard in Australia’s highest Court and the importance of the findings made for many families across Australia.  

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Who is a Parent??

Modern families come in all shapes and sizes. The traditional definition of who a ‘parent’ has been challenged by the increasing number of single-parent families, adoptive parents, surrogate parents and extended families.

Recent advances in medical science have complicated things further.  On 6 April 2016, the first child in the world with three parents was born. A Jordanian couple had been unable to start a family for 20 years, due to a rare genetic disorder carried by the mother. Doctors used a newly developed technique called Mitochondrial Replacement Therapy to implant the genetic material of a third person into the embryo, ensuring that the child did not receive the portions of the mother’s genetic material that could cause the disorder. Being the first child in the world born this way, the baby was dubbed the world’s first ‘three parent’ child.

But how many legal parents does the child born on 6 April 2016 have, and why would it matter?

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Grandparents and child access

The Family Law Act states that children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development including grandparents. Since the grandchildren obviously aren’t in a position to enforce that right and if the parents are not facilitating the contact with the grandparents, it will be up to the grandparent to take action to do so. But don’t just sit there and hope for the best- the longer you leave it, the weaker your case gets.

The first step is to attempt to resolve the matter by way of Mediation with a qualified Family Dispute Resolution mediator. If the Mediation is not successful, then unfortunately you may have little option but to commence Family Court proceedings.

To succeed in the Family Court, the grandparents must satisfy the court that they are significant adults in the lives of the grandchildren and that such time would be beneficial. The court will consider:

  1. The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from any grandparent with whom they have been living.
  2. The capacity of any other person, including any grandparent, to provide for the needs of the child, including emotional and intellectual needs.

In many cases well-meaning grandparents who make such an application to the courts come up against vigorous opposition from the parents of the children in question. There are many reasons for such opposition but alcohol, abuse, drug addiction, family & domestic violence and poor relations between the grandparents and their own children (the parents of the grandchildren) are often at least partially to blame.

If it can be shown that the grandparents have historically been involved in the life of the grand-children, the Court will be inclined to allow the grandparent to continue this relationship despite the breakdown of the parent’s relationship and their subsequent refusal to let the grandchildren spend time with the grandparents.

If you’re not sure what your options are, don’t rely on Heather down the road for advice - make sure you see a lawyer who actually knows what they’re talking about. Little birdies generally cause more problems than not, so set up your case properly from the beginning.

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“I’m a sperm donor!” he said. “I’m a parent!” he said. WRONG.

“I’m a sperm donor!” he said. “I’m a parent!” he said. WRONG.

Well, at least for legal purposes, in Western Australia.

When it comes to matters of artificial conception, the Artificial Conception Act 1985 (WA) states the following:

  1. if a man provides genetic material to a woman, and that woman uses his genetic material to become pregnant via an artificial fertilisation procedure, then the man “shall be conclusively presumed not to have caused the pregnancy” and “is not the father of any child born as a result of the pregnancy”.
  2. if a “woman undergoes, with the consent of her de facto partner, an artificial fertilisation procedure in consequence of which she becomes pregnant… then the de facto partner of the pregnant woman, shall be conclusively presumed to be a parent of the unborn child” and “is a parent of any child born as a result of the pregnancy”.

I don’t know about you, but my first reaction is that that first part does not sit in accordance with what I learnt from Maury Povich.

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