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Family law and the Constitution

By March 13, 2019November 2nd, 2021No Comments

Whether it’s about religion , the creation of a merged court system, a Royal Commission, or the simple question of if we can hire more judges , the Consitution has entered the debate several times in family law in recent times.

And now, again, there’s discussion about family law and the Constitution, with the Attorney-General Christian Porter “intervening”  in a family law matter being appealed in the High Court centring on definition of the word ‘parent’. Porter says the case raises “important questions of constitutional principle about the application of state laws in cases arising under commonwealth legislation”.

It’s all due to the fact that in the case, a state law was initially found to override a federal one, before that ruling was overturned and federal law is now being argued to override the state rule. The Attorney-General reiterated that when there’s an insersection of state legislation and the Family Law Act, the Act is clear about the defined function of the state law. Within it’s scope, the state law doesn’t or can’t define terms (such as “parent”) for the federal family law.

Writing in The Australian, Nikola Berkovic says Porter argues the definition of ‘parent’ in the family law should be expanded so it incorporates sperm donors. This would cover situations where the sperm donor wasn’t in de facto or married relationship with a child’s mother when the child was conceived (which would already confer parentage rights under existing laws).

The debate isn’t just academic—the outcome could affect many sperm donor and child relationships in the future. For example, it may change expectations and agreements around parenthood relationships in situations where single mothers have used known sperm donors.

The case involved is one we have mentioned previously on our blog. In the matter, a gay man is acting to prevent an international relocation of his biological daughter who he had with an old friend.

When the case was heard in the family court, at first the father was successful in arguing he was the child’s legal father. However, the child’s mother appealed and the full Family Court said at the time it was a “constitutional ­heresy” to treat the man as the legal father because the state law applied, since the federal law did not provide “otherwise”.  Under state law, there’s an irrebuttable presumption that the father was not a legal parent because he was not married or in a de facto relationship with the mother at the child’s conception time.

Now presumably the man’s lawyers will argue, like Porter, that “’parent’ is a ‘question of fact’, in which biological and social factors could be relevant, as well as the parents’ conduct.  [B]ecause the federal law ‘otherwise provides’, the state legislation does not apply”.

So, we’re back at the point where the federal law either does make room for an expanded definition of ‘parent’, or it doesn’t and the state can be allowed to define it. When (if) the Family Law Act is updated after the ALRC review findings at the end of this month, it would be the perfect opportunity to amend the definition of ‘parent’, along with any other definitional changes that need to be made.

Do you need help with a family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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