The definition of what constitutes a ‘parent’ in Australia has undergone significant change in the last few decades.
A child’s parentage often does not fit the nuclear model (mother and father to their biological child) and so the provisions of the Family Law Act have had to adapt to the changing face of what constitutes a ‘parent’ or the changing definition of a child’s ‘family’ in modern Australia.
However, the provisions of Part VII Family Law Act are not in all aspects up-to-date in respect of the modern Australia societal definition of a ‘parent’.
The question ‘Am I a parent’ for the purpose of the Family law Act 1975 is therefore not a simple question to answer.
Am I a parent under the Family Law Act?
The term ‘parent’ is not defined in the Family Law Act, other than to define that an adoptive parent is considered a parent for the purposes of the Act (section 4 Family Law Act).
One wonders why there is no definition of ‘parent’ in the Family Law Act as the term is referred to repeatedly in the Act. In any parenting application, a Judge must consider who will have parental responsibility for a child, whether it is in the child’s best interests to have a meaningful relationship with both parents, what is the nature of the child’s relationship with both parents, what is the likely effect of a separation on the child from either of his or her parents.
As a result, Judges are required to carefully consider the case law in determining whether in each case, a person meets the definition of a ‘parent’ for the purpose of the Act.
Am I a parent Case Study: Groth & Banks
In the case of Groth & Banks  FamCA 430, the Family Court was asked to clarify the definition of a parent under the Family Law Act after a child was conceived by assisted reproductive technology (“IVF”). Here the Applicant was the person who supplied his genetic material and sought parenting Orders from the Court after the Mother denied his attempts to have a relationship with the child and be involved in parenting the child.
The Respondent Mother argued that the Applicant was not a parent at law as he had done no more than provide his genetic material for use in an artificial conception procedure.
On the contrary, the Applicant argued that for the purpose of Part VII of the Family Law Act (Cth), “parent” means a child’s biological parent, unless there is express provision for an alternative.
The Court contemplated the definition of a ‘parent’ in the context of the Act and current case Law. It was held that given there is no exhaustive definition of the word ‘parent’ in the Act, except where the child is adopted, the word ‘parent’ should take its ordinary dictionary meaning. Cronin J considered the cases of Donnell v Dovey  , Tobin v Tobin  ,and Re: Mark: An Application relating to Parental Responsibilities  in making his findings that the applicant was a ‘parent’ for the purposes of the Act.
He concluded that:
“In s 4 (1) of the Act, the word “parent” is not exhaustively defined. The section reads: ‘parent, when used in Part VII in relation to a child who has been adopted, means an adoptive parent of a child’. The definition is unhelpful where the child has not been adopted. The lack of comprehensive definition means that the word “parent” should be given its ordinary dictionary meaning. That approach is consistent with the use and obvious intention used throughout the Act …
…. the interpretation of ‘parent’ in the Act allows each case to be determined on its particular facts. 
The fact that a child has two parents who are her or his biological progenitors permeates the language of the Act. The whole Commonwealth statutory concept as outlined in the Part VII of the Act is one in which biology is the determining factor unless specifically excluded by law…
Part VII of the Act contains multiple references to the parents of the child as ‘either’ or ‘both’. These can be found at s 60B(1)(a), 60B(2)(a) and (b), 60CC(2)(a), 60CC(3)(d)(i), 61C(2), 65C(a), 66B(2), 66F(1) and 69C(2). The logical presumption which follows is that the legislature envisaged two parents when dealing with parental responsibility under the Act.
The applicant fits that presumption in the Act of who is a parent. He is the biological progenitor and one of two people who set about a course of conduct with the intention of fathering a child. On the face of the language in the Act and the facts here, a logical conclusion would be that the applicant is the parent of the child. If one turns to the sections of the Act that displace biological progenitors as parents, little changes.” 
The court’s interpretation of a ‘parent’ in this case was assisted by the fact that the Applicant (Father) wanted to have a relationship with the child and the Court distinguished this case to other cases where the sperm donor was unknown as “the Act does not impose obligations on an unknown person who had donated biological material”. 
What if I am not considered a ‘parent’ under the Family Law Act?
Are you currently performing the role of parent in a child’s life, but you are not a parent for the purposes of the Family Law Act?
Whilst policy makers have attempted to keep up with the advancements in modern reproductive medicine, the Family Law Act is regrettably not up-to-date in all respects in relation to the changing face of what constitutes a “parent” or a child’s notion of “family” in modern Australia.
Unless a partner to a woman who has had a child via artificial conception can prove that they were married or in a de facto relationship with the woman at the time of the conception – then according to section 60H of the Family Law Act they are not a parent for the purpose of the Act.
This can have significant effects on a person’s capacity to seek orders in relation to a child despite the fact that they may have had a substantial and influential parenting role in the child’s life.
If a person cannot demonstrate that they are a ‘parent’ of the child, then they will not be presumed to share parental responsibility with the biological parent of the child.
As a result, the person will be required to apply to the court seeking parental responsibility as a person concerned with the “care, welfare and development” of a child (section 65C of the Family Law Act).
However, a person who is determined by a court to be concerned with the “care, welfare and development” of the child does not have the same benefits when applying for a parenting order, as that of a parent. ‘
For the non-parent, this effectively means that:
- There is no presumption that the parent and the non-parent should have equal shared parental responsibility in relation to long term decisions affecting the child;
- There is no right of the child to have a meaningful relationship with the non-parent;
- There is no requirement for the court to consider whether the child spending equal time or substantial and significant with the parent and the non-parent is in the child’s best interests and practical.
This creates certain limitations for non-biological parents seeking relief from the court in contested parenting applications.
For a more detailed discussion of the rights of non-parents when applying for parenting orders, see our family law article on Non-Parent Parenting orders.
As the notion of what constitutes a “parent” expands within Australian society, the concept in the Family Law Act will similarly need to expand.
Given the current deficiencies highlighted in the Family Law Act 1975, it would assist for policy makers to amend the current definition of ‘parent’ to a more inclusive concept not limited to the traditional definition of a parent that is currently recognised under the law.
Are you unsure whether or not you are considered a parent under the Family Law Act?
Contact our office on 3465 9332 and book a reduced rate initial consultation with our experienced family lawyer, Courtney Barton, to have a confidential discussion about your individual circumstances.