Truth or ‘collateral damage’?
Legal parentage, bio-genetic parentage and children’s perspectives
Hannah Robert
https://orcid.org/0000-0002-4243-1242
Submitted in total fulfilment of the requirements of the degree of Doctor of Philosophy
August 2018
Melbourne Law School
The University of Melbourne
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ABSTRACT
This study explores the operation of legal parentage within Australian family law through analysing judgments and legislation in ‘misattributed fatherhood’ cases – where the person who is publicly identified or assumed to be the legal father is shown not to be genetically related to the child. It argues that legal parentage currently performs four different, bundled, functions: recording the child’s origins, designating default parental responsibility, defining the child’s legal kinship identity and assigning economic responsibility. In these judgments, judges generally re‐align the child’s legal parentage to match the factual finding regarding the child’s genetic parentage. This often erases the status of a social father as a legal father, and sometimes identifies men who are genetic fathers, but who have not parented the child, as legal parents. In the process, a child’s legal identity and legal kinship relationships may be radically and retrospectively rewritten, with little space for judges to consider the impacts for the child in question, or the child’s own understandings of their legal kinship identity or relationships.
Binding these four functions together within legal parentage is rhetoric (judicial, legislative and social) which frames biogenetic parentage as ‘true’ parentage. This ‘biotruth’ rhetoric conflates legal parentage as a question of law with the factual enquiry as to a child’s progenitors. In so doing, it masks the technical complexity of legal parentage and obscures law’s role in shaping, legitimating and constructing legal kinship relationships. It means that the legal definitions of ‘parent’ fail to reflect the complexity and diversity of human family‐ making (both biological and social) and, in the process, fail to recognise and protect children’s complex interests in information about their origins and the stability of their legal kinship identity and relationships. Biotruth rhetoric within legislative and judicial understandings of legal parentage therefore works to prioritise adherence to a normalised family structure over supporting and securing the relationships on which children rely for their care, kinship identity, and economic support. A more child‐centred approach would unbundle these distinct functions, and create space to hear children’s voices on any proposed changes to their legal parentage, and on the release and use of information about their origins.
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DECLARATIONS
i) This thesis comprises only my original work except where otherwise indicated; ii) Due acknowledgement has been made in the text to all other material used by footnotes giving explicit references. A bibliography is appended; iii) This thesis is fewer than the maximum word limit in length, exclusive of tables, maps, bibliographies and appendices.
Signed:
Hannah Robert
27 August 2018
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ACKNOWLEDGMENTS
This work could not have happened without the support of:
My wise and kind supervisors at Melbourne Law School, Helen Rhoades and Jenny Morgan, and during my time at the University of Sydney, Reg Graycar and Jenni Millbank. My wonderful current and former colleagues at La Trobe, particularly Laura Griffin, Fiona Kelly, Anastasia Kanjere, Julia Dehm, Anita McKay, Pascal Chifflet, Marc Trabsky, Kirsty Duncanson, Marcella Carragher, Jill Murray, Lee Ann Basser, Kerry Petersen, Maddy Chiam, Maria Elander, Anne Maree Farrell, Nicole Shackleton, Steven Tudor, Savitri Taylor and my very supportive Head of School, Patrick Keyzer and Associate Head of School, Anne Wallace. Special thanks to Laura Tolton for the weekly check‐in and research planning sessions as we got towards the end, and for putting me onto Brigitte Jordan. My dear friends and family who put up with thesis dramas over the years, doled out sage advice and went beyond the call of duty when needed: Penelope Goodes, Rosalind Hearder, Sarah Tayton, Steven Macmillan, Matt Drummond, Belinda Quantock, Sabdha and Cristi Pink Charlton, Katie Murray, Anna Clark, Caitlin Coleman, Ryan Wick, David Venema and John, Debbie, Jo, Jeremy and Erica Robert. Various shut up & write groups at La Trobe (special thanks to the Research Education & Development team there: Jeannette Fife, Tseen Khoo & Katherine Firth), and beyond (thank you Jason Murphy for the WriteUp initiative and Vicki Huang for the indomitable MLS PhD writing group).
Yes Ali, the chapters are all done now.
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For A & Z
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Contents
ABSTRACT ...... 2
DECLARATIONS ...... 3
ACKNOWLEDGMENTS ...... 4
CHAPTER ONE – Introduction ...... 11
I The problem addressed ...... 15
II Research questions ...... 2 0
III Method and theoretical approach ...... 21
IV Arguments ...... 29
A Four disparate functions within legal parentage ...... 29
B Biotruth binds these four functions ...... 40
V Outline of chapters ...... 42
CHAPTER TWO – A Tale of Two Fatherhoods: The Historical Context of Legal Parentage and Genetic Paternity ...... 43
I Husbands (legal fathers) v ‘natural’ fathers ...... 44
A Husbands (legal fathers) ...... 48
B ‘Natural’ or ‘putative’ fathers ...... 50
C Bastardisation, legitimation and adoption ...... 56
D Evidentiary Protections surrounding the Presumption of Legitimacy ...... 57
II Challenging Illegitimacy ...... 63
A Dismantling of evidentiary protections of presumption of legitimacy ...... 63
B Illegitimacy as stigma ...... 68
C Linking biogenetic ‘truth’, the best interests of the child, and legal parentage ...... 71
D Abolishing illegitimacy, abolishing fatherlessness? ...... 74
III Unifying the ‘natural’ and the ‘legal’ father ...... 83
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A From affiliation to assessment – legal parentage and the introduction of the Child Support Scheme ...... 90
B Linking legal parentage and economic responsibility for children via ‘true’ parentage 100
IV Conclusion ...... 103
CHAPTER THREE – A simple story for a complex law ...... 107
I Who is a legal parent? ...... 108
A Defining, presuming and deeming legal parentage ...... 109
1 Statutory framework ...... 109
2 Common law definition of ‘parent’ ...... 115
3 Tensions between presumptions and the common law definition ...... 119
4 Tensions between statutory and common law definitions ...... 120
B Testing Genetic Parentage ...... 122
C Declaring Legal Parentage ...... 127
II Legal Effects of Legal Parentage ...... 133
III CONCLUSION ...... 136
CHAPTER FOUR – Biotruth Rhetoric ...... 140
V Analytical Framework ...... 143
VI Biotruth: Five Assumptions ...... 147
A Legal Parentage: conflating law and fact ...... 149
B ‘Biological’ Parentage is complicated ...... 157
C ‘Identity’ is more complicated ...... 164
D Justice for who? ...... 171
E Children’s interests are diverse and relational ...... 173
VII Rationalism at the heart of Biotruth ...... 184
A Heterosex as a proxy for intention ...... 185
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B Intention as a factor in legal parentage of assisted conception children ...... 186
C Intention as a factor in determining the obligations of step‐parents and misattributed fathers ...... 189
D Heterosexual reproduction as a sexual contract ...... 191
VIII CONCLUSION ...... 195
CHAPTER FIVE – Legal Parentage v Parenting Orders ...... 199
IX DIFFERENT EFFECTS: What does legal parentage provide that parenting orders cannot? 201
A Different powers ...... 202
B Different status and recognition ...... 204
X DIFFERENT PATHWAYS: applying for parenting orders as a non‐legal parent ...... 205
A Establishing Standing to apply for parenting orders as a non‐parent ...... 207
B Starting from nothing – claiming parenting orders without default parental responsibility ...... 207
C Navigating the best interests legislative pathway as a non‐parent ...... 208
XI SAME DESTINATION? Can parenting orders resolve the problems of legal parentage? 215
A The bundled structure of legal parentage limits parenting orders ...... 216
1 Parenting orders can help preserve and protect healthy social parenting relationships between children and misattributed fathers...... 216
2 Parenting orders cannot address children’s legal kinship identity ...... 223
3 Parenting orders cannot address children’s origins information ...... 225
4 Parental Autonomy v Courts’ jurisdiction to make parenting orders ...... 226
B Biotruth rhetoric seeps into parenting order judgments ...... 230
1 Concern about the ‘confusion’ caused by two fathers ...... 230
2 Misattributed Fathers ‘passing’ as genetic fathers ...... 237
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3 Relying on a lack of biogenetic parentage to exclude a ‘controlling’ or problematic parent ...... 238
XII Conclusion ...... 241
CHAPTER SIX – Wise Children: Hearing Children’s Perspectives on their legal parentage ... 245
XIII Why hear children’s perspectives on their legal parentage? ...... 249
A Evidence from the disputed paternity cases ...... 251
1 No space to hear children’s perspectives on legal parentage ...... 252
2 Children’s distress – crisis of disclosure ...... 259
3 ‘Confusion’ where children’s views of their parentage were at odds with biotruth . 263
4 Parentage from the parent’s perspective ...... 264
5 Children’s legal parentage as instrumental to other agendas ...... 265
B Evidence from Research with late‐discovery Adopted and Donor‐conceived people 267
1 Access to origins information and the option of contact is valued by adopted and donor‐conceived people ...... 267
2 Most adopted and donor‐conceived people regard their social parents as their parents 269
3 Being heard on changes to legal kinship identity is valued ...... 274
4 Secrets and lies can cause harm ...... 275
C Evidence from Research on children’s participation in family law ...... 280
1 Children want to be heard ...... 280
2 Children are capable of participating meaningfully in decisions ...... 281
3 Better decisions can result if children are consulted ...... 285
4 International law and understandings of children as citizens require consultation with the children concerned ...... 289
XIV Existing Mechanisms to hear children’s voices on parenting order matters ...... 291
A Family Dispute Resolution ...... 292
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B Family Reports ...... 292
C Independent Children’s Lawyer (ICL) ...... 293
D Critiques of Existing Mechanisms ...... 295
XV Obstacles to Hearing Children on Access to Origins Information and on Legal Kinship Identity ...... 301
XVI Implications: A Child‐Centred concept of legal parentage? ...... 305
1 Unbundling Origins Information from Legal Parentage ...... 306
2 Allocating Legal Parentage at Birth ...... 309
3 Re‐visiting Legal Parentage ...... 311
4 Standing in the place of a parent – the Canadian model ...... 312
5 Hearing children on their legal parentage ...... 315
6 Further unbundling the functions within Legal Parentage ...... 316
XVII Conclusion ...... 318
CHAPTER SEVEN: Conclusion ...... 321
XVIII Revisiting the Research Questions ...... 322
XIX Reconsidering the bundled model of legal parentage ...... 327
XX Re‐conceiving of Legal Parentage as a status – and as an aspect of legal personhood . 330
Bibliography ...... 334
A. Articles/Books/Reports ...... 334
B. Cases ...... 359
C. Legislation ...... 366
D. Treaties ...... 367
E. Other...... 367
10 Chapter One ‐ Introduction
CHAPTER ONE – Introduction
From the child’s point of view, his father (as he thought) has rejected him, for no apparent reason. The Applicant’s desire to find out the truth about the child’s paternity will result in a financial benefit to him, at the expense of “collateral damage” to the child.1
The term ‘collateral damage’ in the title of this thesis is borrowed from this quotation from a judgment on legal parentage.2 Federal Magistrate Scarlett held that Mr Levine was not a legal parent of the sixteen‐year‐old boy who regarded him as his father, and that Mr Levine was therefore not liable to pay child support. The child’s mother, Mrs Levine, was ordered to refund Mr Levine nearly $13,000 in child support payments he had made in respect of the child, and to pay his costs. Mr Levine was described as having had ‘a loving relationship’ with the boy since he was born, which ‘came to an abrupt halt when the father stopped all contact with him’ after the DNA result was obtained.3 It may have been Mr Levine, rather than the law, who was ultimately responsible for rejecting the child who regarded him as ‘Dad’, but the fact that legal parentage echoes this rejection is troubling, particularly within a family law system which seeks to prioritise the best interests of the child.4 The collision here between the simplistic legal response – that legal parentage between a man and child evaporates once genetic paternity is disproved – and the complexity of the child’s situation, is jarring at a number of levels. First, it raises questions about law’s use (and simplification) of genetic science to resolve an important aspect of children’s legal personhood – their legal parentage, and the rights,
1 Levine & Levine [2011] FMCAfam 821 [78] (Scarlett FM). 2 This thesis uses the term ‘legal parentage’ to describe the legal relationship between parent and child. It deliberately considers that relationship from the child’s perspective (the child’s parentage status) rather than from that of the adult (an adult’s parenthood status), while acknowledging that these are two ends of the same stick, being the parent‐child relation. 3 Levine & Levine [2011] FMCAfam 821 [76] (Scarlett FM). (‘Levine’) 4 Family Law Act 1975 (Cth) s 60B. By ‘family law system’, I mean not just the courts authorised to make orders under the Family Law Act 1975, but also the associated administrative and Alternative Dispute Resolution services enabling resolution of family law disputes outside the courts.
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Chapter One ‐ Introduction relationships and identity that flow from it. Like legal recognition of gender, legal parentage ‘is a manifestation of the law's impulse to use categories and draw lines to understand and simplify complex concepts’.5 Second, these kinds of cases also highlight tensions between the diverse policy objectives at play when legal parentage is being decided. Should parentage law ensure that people are only responsible (financial and/or more broadly) for children in whose conception they have participated? Or should the functions which legal parentage serves for the child be prioritised? Third, Levine is one of a number of misattributed paternity judgments which indicate that the children at the heart of these cases may be experiencing significant distress.6 The child’s distress may depend on many factors, including the age of the child, the degree to which their lived kinship and parenting arrangements reflected their presumed legal parentage, and whether these lived relationships survive disclosure. In each case where genetic paternity is dis‐established, however, an established legal parentage relationship is erased or left vulnerable to erasure.7 It may be for many disputed paternity children that the most damaging part is where their misattributed father decides to sever all social and legal links with the child – yet at present this is a
5 Laura Greenfell and Anne Hewitt, 'Gender Regulation: Restrictive, Facilitative or Transformative Laws' (2012) 34 Sydney Law Review 761, 761. Here, I have borrowed the term ‘gender recognition’ from Holning Lau to mean ‘the right of individuals to obtain government‐issued identity documents (IDs) that match one’s gender identity’. Holning Lau, Gender Recognition as a Human Right (20 October 2017) Legal Studies Research Paper Series University of North Carolina, 1
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Chapter One ‐ Introduction decision which is authorised, enabled and, to some extent, normalised by the structure of legal parentage and the rhetoric surrounding it. Making such a sudden and retrospective change to a child’s legal parentage without any opportunity to hear from the child regarding the significance (or otherwise) of their existing legal parentage may exacerbate the loss and trauma caused by the disclosure of non‐genetic paternity itself and any rejection by the misattributed father. While the status of illegitimacy has been abolished in Australia for over forty years, children in this or similar predicaments face a new form of bastardisation or ‘de‐kinning’. As Carol Smart notes, ‘… kinship is nested in relationships which are lived and meaningful. Legal truth (founded exclusively on genetic testing) can cut through and disrupt these relationships’.8 If (as conservative estimates suggest) misattributed paternity occurs at a rate of one to three percent of all births in a country like Australia, up to 9,000 children born in Australia each year may be vulnerable to being de‐kinned in this way.9 This study examines law’s response (or lack of response) to the actual and potential distress suffered by children in these situations. The quote above from Scarlett FM is an indicator that judges feel troubled by this prospect of harm to children. In the next paragraph, Scarlett FM remarked:
One might well ask why, if [X, the child] does not know about the result of the paternity test, the Applicant should not continue to give this child the benefit of his time, support and encouragement. An adult can still have a loving, nurturing relationship with a child even if the adult is not the child’s biological parent. Australian society is full of people who have loving relationships with their step‐ children or adopted children.10
8 Carol Smart, 'Family Secrets: Law and Understandings of Openness in Everyday Relationships' (2009) 38 Journal of Social Policy 551, 555. 9 Michael Gilding, 'Rampant Misattributed Paternity: The Creation of an Urban Myth' (2005) 13(2) People and Place 1; Australian Bureau of Statistics, 3301.0 Births, Australia, 2016, (28 January 2017) ABS
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Chapter One ‐ Introduction
Scarlett FM was in no doubt that Mr Levine was ‘not a parent of the child’ because he was not a genetic progenitor.11 Yet the paragraph above indicates a lingering discomfort which signals serious difficulties surrounding the concept of legal parentage as it currently operates, and its usefulness in defining parental obligations. In the face of diverse and complex family practices, and a shift in community understandings towards thinking of parentage as a relationship defined by unconditional support in response to a child’s needs, the current model of legal parentage locks judges into an outdated notion of parent‐child relationships. Finally, the story of legal parentage as a simple reflection of genetic fact also sits awkwardly with the statutory exceptions to the common law definition of ‘parent’ for adopted children and those conceived via assisted reproductive treatment (‘ART’). These exceptions offer significant protection of children’s dual interests in secure legal relationships with social parents and access to information and opportunities for contact with birth and genetic family – protections not available to misattributed paternity children or other children who experience a similar mismatch between their genetic parentage and their lived parenting relationships. The lack of clarity around legal parentage, and judicial concerns about practical impacts on the best interests of the children in these grey areas, led former Attorney‐ General Nicola Roxon, to refer the issue to the Family Law Council in 2012, resulting in the Report on Parentage and the Family Law Act.12 In a personal submission to the Council, the former Chief Justice of the Family Court of Australia called for “a new and more inclusive definition of parent”.13 Defining a person’s legal parentage is one of the central ways in which law regulates families and human relationships in general, and is (as will be argued further below) a crucial aspect of our legal personhood. For the sixteen‐year‐old boy in the Levine case above, a DNA result was sufficient to unravel his legal parentage – in terms
11 Ibid [56]. 12 Family Law Council, Report on Parentage and the Family Law Act (2013) 26. 13 Bryant CJ, Personal submission to Family Law Council. Ibid 26. The Victorian Law Reform Commission’s 2013 consultations regarding birth registration also indicate that determining and recording legal parentage raises “many vexed questions”. Victorian Law Reform Commission, Birth Registration and Birth Certificates: A Community Law Reform Project (August 2013) 30.
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Chapter One ‐ Introduction of what information should be held regarding his origins, who held default parental responsibility for him, how his legal kinship identity was defined and who would bear economic responsibility for him. Because these legal functions are currently bundled within the construct of ‘legal parent’, it was not possible for the judge to make a declaration regarding one without affecting the other three. And because legal parentage was construed as a question of ‘truth’, the judge was left with no jurisdictional space to consider the child’s perspective on whom he regarded and relied on as his parent, or even his best interests.14 This thesis critiques these two aspects of legal parentage: its structure, that is, the functions it serves and the relations between those functions; and how law authorises particular knowledge as ‘truth’ via the rhetoric used in judgements and legislation regulating legal parentage.
I THE PROBLEM ADDRESSED
This study therefore takes the perennial problem of legal parentage and the tensions which scholars have identified between biological, functional and intentional parentage, and considers a different cohort of children (disputed paternity children, rather than those conceived via reproductive technologies). It also shifts the focus, from the would‐be parents and their genetic, functional and/or intentional claims to children, toward the children themselves in situations where misattributed fathers often seek to deny the obligations of legal parentage. This study builds on the research around
‘fragmentation’ of legal parentage,15 making a close analysis of the functions which legal
14 Though the child’s best interests, and within that inquiry, the child’s views, would have been relevant had Mr Levine sought parenting orders for the child to live or spend time with him. See Chapter Five for further discussion. 15 Julie McCandless and Sally Sheldon, 'The Human Fertilisation and Embryology Act (2008) and the Tenacity of the Sexual Family' (2010) 73 Modern Law Review 175; Carol Smart and Bren Neale, Family Fragments? (Polity Press, 1999); Richard Collier and Sally Sheldon, Fragmenting Fatherhood: A Socio‐Legal Study (Hart, 2008) 235 and throughout; Sally Sheldon, 'Fragmenting Fatherhood: The Regulation of Reproductive Technologies.' (2005) 68(4) Modern Law Review 523; Alison Diduck, ‘“If Only We Can Find the Appropriate Terms to use the Issue Will Be Solved”: Law, Identity and Parenthood' [458] (2007) 19(4) Child and Family Law Quarterly 458; Judith Masson, 'Parenting by Being; Parenting by Doing ‐ In Search of Principles for Founding Families' in J R Spencer and Antje Du Bois‐Pedain (eds), Freedom and Responsibility in Reproductive Choice (Hart Publishing, 2006) 131‐156; Emily Jackson, 'What is a Parent?' in Alison Diduck and Katherine O'Donovan (eds), Feminist Perspectives on Family Law (Routledge, 2006) 59; Alleardo Zanghellini, 'Who is Entitled to Parental Responsibility? Biology, Caregiving, Intention and the Family Law
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Chapter One ‐ Introduction parentage plays in children’s lives and their legal personhood, and of the rhetoric which binds these functions into the mechanism of legal parentage. Scholars have tended to approach the difficulties surrounding legal parentage by analysing the relative merits of biogenetic origins and other determinants of legal parentage such as the adult’s intention or choice to parent, the way in which the adult has functioned as a parent and, occasionally, the child’s reliance on someone as a parent in a relational sense.16 A key observation from this literature has been the potential of reproductive technologies to fragment parenthood, to:
… break down parenthood into the various constituent parts (including social, intentional, genetic and gestational links) on which parenthood has typically been predicated and which, in the sexual family model,
Act 1975 (Cth): A Jurisprudential Feminist Analysis' (2009) 35 Monash University Law Review 147; Jenni Millbank, 'Lesbians, Child Custody and the Long Lingering Gaze of the Law' in Susan B Boyd (ed), Challenging the Public/Private Divide: Feminism, Law, and Public Policy (University of Toronto Press 1997) 280; Jenny Millbank, 'Parental Status for Lesbian Mothers Having Children Through Assisted Conception' (2006) 19(1) Australian Family Lawyer 6; Reg Graycar and Jenni Millbank, 'From Functional Family to Spinster Sisters: Australia's Distinctive Path to Relationship Recognition' (2007 ) 24 Washington University Journal of Law and Policy 121; Jenni Millbank, Areas of Federal Law that Exclude Same‐Sex Couples and their Children: Research Paper for the Human Rights and Equal Opportunity Commission’s National Inquiry into Discrimination against People in Same‐Sex Relationships: Financial and Work‐Related Entitlements and Benefits (2006); Jenni Millbank, 'The Limits of Functional Family: Lesbian Mother Litigation in the Era of the Eternal Biological Family' (2008) 22 International Journal of Law, Policy and the Family 149; Fiona Kelly, 'Redefining Parenthood: Gay and Lesbian Families in the Family Court — the Case of Re Patrick' (2002) 16 (1‐23) Australian Journal of Family Law 204; Fiona Kelly, 'Producing Paternity: The Role of Legal Fatherhood in Maintaining the Traditional Family' (2009) 21 Canadian Journal of Women and the Law 315; Susan B Boyd, 'Gendering Legal Parenthood: Bio‐Genetic Ties, Intentionality and Responsibility' [63] (2007) 25 Windsor Yearbook of Access to Justice 63; Deborah Dempsey, 'Donor, Father or Parent? Conceiving Paternity in the Australian Family Court' (2004) 18 International Journal of Law, Policy and the Family 76; Julie Shapiro, 'A Lesbian Centered Critique of Genetic Parenthood' (2006) 9 Journal of Gender, Race and Justice 591; Janet L Dolgin, 'Choice, Tradition, and the New Genetics: The Fragmentation of the Ideology of Family' (2000) 32(2) Connecticut Law Review 523. 16 See, eg, Deborah H Wald, 'The Parentage Puzzle: The Interplay Between Genetics, Procreative Intent and Parental Conduct in Determining Legal Parentage' (2007) 15(3) Journal of Gender, Social Policy & the Law 379; Masson, above n 15; Myrisha S Lewis, 'Biology, Genetics, Nurture and the Law: The Expansion of the Legal Definition of Family to Include Three or More Parents' (2016) 16 Nevada Law Journal 745; Barbara Bennett Woodhouse, 'Hatching the Egg: A Child‐Centred Perspective on Parents' Rights' (1993) Cardozo Law Review 1747; Janet L Dolgin, 'Biological Evaluations: Blood, Genes and Family' (2008) 41 Akron Law Review 347; Janet L Dolgin, 'Just a Gene: Judical Assumptions About Parenthood' (1993) 40 UCLA Law Review 637; Giuliana Fuscaldo, 'Genetic Ties: Are They Morally Binding?' (2006) 20(2) Bioethics 64; Tim Bayne and Avery Kolers, 'Towards a Pluralist Account of Parenthood' (2003) 17(3) Bioethics 221; Krista Sirola, 'Are You My Mother? Defending the Rights of Intended Parents in Gestational Surrogacy Arrangements in Pennsylvania' (2006) 14(1) Journal of Gender, Social Policy & the Law 131; Millbank, 'The Limits of Functional Family: Lesbian Mother Litigation in the Era of the Eternal Biological Family', above n
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Chapter One ‐ Introduction
are all located within the sexual couple composed of one mother and one father, who raise their own
genetic children.17
These distinct claims to the ‘constituent parts’ of legal parentage have primarily been discussed in the context of donor conception and surrogacy – where the mismatch of genetic and social parenting is intentional. Similar or related practical issues arise for children in blended families, in customary adoptions and kinship care (particularly among Aboriginal and Torres Strait Islander communities, whose definitions of parent may be very different to Anglo‐Australian understandings), though less scholarship has addressed these families.18
Scholarship on the ‘fragmentation’ of parenthood has informed legislative changes extending legal parentage to particular categories of non‐genetic parents (such as lesbian co‐mothers or non‐biogenetic parents of donor‐conceived children).19 This scholarship, and its influence on law reform around parentage via ART and same‐sex families, has stretched understandings of legal parentage in the direction of recognising parents on the basis of intention to parent and performance of parenting functions. Yet, at the same time, the growing availability and affordability of DNA testing (along with increased anxiety around fatherhood amidst significant social change) has resulted in an increased emphasis on genetic connection for determining legal parentage for heterosexually‐conceived children – a ‘geneticisation of fatherhood’.20 Even among other children being parented by a non‐genetic parent, however, children of misattributed paternity are in a distinct position. Misattributed paternity cases offer a novel insight into the functioning of legal parentage because unlike for children born via donor conception or surrogacy, the
15; Carol Smart, 'Making Kin: Relationality and Law' in Anne Bottomley and Simone Wong (eds), Changing Contours of Domestic Life, Family and Law (Hart, 2009) 7; John Eekelaar, Family Law and Personal Life (Oxford University Press, 2007); Here, I use the term ‘biogenetic’ in the sense it is used by Susan Boyd as an umbrella term including both genetic and gestational connections between family members. Boyd, above n 15; June Carbone and Naomi Cahn, 'Which Ties Bind ‐ Redefining the Parent‐Child Relationship in an Age of Genetic Certainty' (2003) 11 (2) William & Mary Bill of Rights Journal 1011; June Carbone, 'The Legal Definition of Parenthood: Uncertainty at the Core of Family Identity' (2005) 65 Louisiana Law Review 1295. 17 McCandless and Sheldon, above n 15. 18 See, eg, Deanne Drummond, 'Kupai Omasker – Incorporating Traditional Adoption Practices into Australia’s Family Law System', (Paper presented at World Congress on Family Law and Children’s Rights, Sydney, 17 March, 2013); Family Law Council, Improving the Family Law System for Aboriginal and Torres Strait Islander Clients, Report to the Attorney‐General (February 2012); Lara & Lara v Marley & Sharp [2003] FamCA 1393; Donnell v Dovey [2010] FamCAFC 15 (Warnick, Thackray & O'Ryan JJ). 19 See, eg, Victorian Law Reform Commission, Assisted Reproductive Technology & Adoption Report, Report No 10 (2007); Status of Children Act 1974 (Vic) ss 13‐14, as amended by the Assisted Reproductive Treatment Act 2008 (Vic); Family Law Act 1975 (Cth) s 60H, as amended by the Same‐Sex Relationships (Equal Treatment in Commonwealth Laws‐General Law Reform) Act 2008 (Cth). 20 Collier and Sheldon, above n 15, 225.
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Chapter One ‐ Introduction mismatch of biogenetic and social and/or legal parentage is inadvertent and much of the litigation centres on non‐genetic parents seeking to deny, rather than to claim, parental status and its attendant obligations.21 The presumptions of parentage (discussed in Chapter Three) also mean that the person they regard as their father may also be a legal parent from birth, until evidence is brought to rebut the presumption. Disputed paternity children therefore experience a particular uncertainty regarding their legal parentage – one‐half of their legal kinship can be retrospectively erased at any point in their life. This means that family law’s response to misattributed paternity exposes cracks in the concept of legal parentage and significant problems in the way it regulates family relationships and the legal kinship identity of children and the adults who care for them. Like the situation of ART‐conceived or adopted children, or those in customary adoptions or kinship care, misattributed paternity children experience what anthropologist Jeanette Edwards calls a ‘choreography between the “biological” and the “social”’.22 This is, however, an under‐researched dance. While some scholars have examined misattributed paternity disputes in the US,23 and the psychological and moral
21 For example, Roxanne Mykitiuk talks about genetic testing offering fathers a ‘double element of choice’: ‘A man who is not married to the mother of his child can choose to recognize that child as his own, while married men can choose to deny paternity on the basis of genetic evidence’. Roxanne Mykitiuk, 'Beyond Conception: Legal Determinations of Filiation in the Context of Assisted Reproductive Technologies' (2001) 39(4) Osgoode Hall Law Journal 771, 783. 22 Jeanette Edwards, 'Undoing Kinship' in Susanna Graham et al (eds), Relatedness in Assisted Reproduction (Cambridge University Press, 2014) 45, 47. 23 Gregory Kaebnick, 'The Natural Father: Genetic Paternity Testing, Marriage, and Fatherhood' (2004) 13 Cambridge Quarterly of Healthcare Ethics 49; Jonathan Ives et al, 'Becoming a Father/Refusing Fatherhood: An Empirical Bioethics Approach to Paternal Responsibilities and Rights' (2008) 3 Clinical Ethics 75; Heather Draper and Jonathan Ives, 'Paternity Testing: A Poor Test of Fatherhood' (2009) 31 Journal of Social Welfare and Family Law 407; Melanie B Jacobs, 'When Daddy Doesn't Want To Be Daddy Anymore: An Argument Against Paternity Fraud Claims' (2004) 16(193) Yale Journal of Law and Feminism 193; Kristin K Jacobs, 'If the Genes Don't Fit: An Overview of Paternity Disestablishment Statutes' (2011‐ 2012) 24 Journal of the American Academy of Matrimonial Law 249.
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Chapter One ‐ Introduction aspects of misattributed paternity,24 Australian judgments and outcomes have received little analysis in the legal scholarship.25 This study works within that gap, and uses an analysis of judgments in disputed paternity cases to examine the functions legal parentage serves and what happens when those functions are misaligned. In particular, it analyses the problems created by continuing to have a single legal concept that performs diverse functions for the child in question. There is strong empirical evidence that family forms are becoming more diverse and that many families experience multiple transitions.26 In addition to the potential of reproductive technologies to fragment parentage, advances in genetic parentage testing technologies and their availability mean that parentage for children conceived via heterosex may also be fragmented. These social changes come in the context of emerging discourses of children’s rights and recognition of the importance of hearing children’s perspectives in delivering good outcomes for them. 27 All of these
24 Emily Kwok, Resolving Misattributed Paternity Disputes in the Context of Family Law and the Child's Best Interest (University of Sydney, 2012); Madeline Kilty, 'Deceitful Non‐Disclosure And Misattributed Paternity' (2010) 11 Australian Journal of Professional and Applied Ethics 132. 25 But see Hannah Robert, 'The Cuckold's Cause: Men Claiming Damages for Deceit Against Mothers Who Got Their Child's Paternity Wrong' in Craig Lind, Heather Keating and Jo Bridgeman (eds), Taking Responsibility, Law and the Changing Family (Ashgate, 2011) 149‐176; Lisa Young and Stephen Shaw, 'Magill v Magill: Families and Deceit' (2005) 19(1) Australian Journal of Family Law 44; Lisa Young, 'Sex, Lies and Money: The High Court Considers Deceit and Paternity Fraud in Magill v Magill' (2007) 15(1) Torts Law Journal 1. 26 Belinda Fehlberg et al, Australian Family Law: The Contemporary Context (Oxford University Press, 2nd ed, 2015). 27 Rosemary Hunter, 'Close Encounters of a Judicial Kind: “Hearing” Children's “Voices” in Family Law Proceedings' (2007) 19 Child and Family Law Quarterly 283, 283; E K M Tisdall, 'Subjects With Agency? Children’s Participation in Family Law Proceedings' (2016) 38 Journal of Social Welfare and Family Law 362; Nigel Lowe and Mervyn Murch, 'Children's Participation in the Family Justice System ‐ Translating Principles into Practice' (2001) 13 Child and Family Law Quarterly 137; E K M Tisdall, 'Children’s Rights and Children’s Wellbeing: Equivalent Policy Concepts?' (2015) 44 Journal of Social Policy 807; John Tobin, 'Taking Children’s Rights Seriously: The Need for a Multilingual Approach' in Alison Diduck, Noam Peleg and Helen Reece (eds), Law in Society: Reflections on Children, Family, Culture and Philosophy, Essays in Honour of Michael Freeman (Brill, 2015) 127.
19
Chapter One ‐ Introduction developments mean that legal parentage as traditionally constituted is struggling to catch up.
II RESEARCH QUESTIONS
This thesis takes judgments and legislation concerning the legal parentage of disputed or misattributed paternity children as its particular case‐study to examine the coherence and usefulness of legal parentage as it currently functions within Australian family law. It asks: How does legislation define, and how do judges understand legal parentage? What is the place of the child in judges’ determinations of legal parentage? How does legal parentage function as a status and as a legal concept? What functions is it expected to serve, and what rhetoric is invoked in making determinations of legal parentage? What unintended outcomes for children are revealed in these judgments? This study therefore builds on analyses considering the relative importance of biology, intention to parent, and functional parenting in determining legal parentage and the fragmentation of parenthood, but takes them in a different direction.28 It uses the misattributed paternity cases to examine the functions bundled within legal parentage and the way in which legal parentage operates as a distinct status or legal mechanism, rather than simply as a reflection of biological or social factors. Where Collier and Sheldon’s research in the UK has considered how the legal role of ‘father’ has fragmented, for example, by separating legal parentage from parental responsibility,29
28 ‘Functional parenting’ or ‘functional family’ claims suggest that functioning as a parent by providing primary care to a child over a sustained period should be a basis for legal recognition or protection. Millbank, 'The Limits of Functional Family: Lesbian Mother Litigation in the Era of the Eternal Biological Family', above n 15; Note, 'Looking For a Family Resemblance: The Limits of a Functional Approach to the Legal Definition of Family' (1991) 104 Harvard Law Review 1640; Graycar and Millbank, above n 15. 29 Collier and Sheldon, above n 15.
20
Chapter One ‐ Introduction this research examines how some functions remain bundled within legal parentage, and how this bundled structure, and the rhetoric justifying it, affects the children involved. This thesis examines law’s role in generating ‘collateral damage’ in misattributed paternity cases like Levine – in particular, what these cases tell us about how legal parentage functions, and where the children involved fit within that functioning. It asks whether our model of legal parentage helps resolve disputes involving paternity in a child‐centred way, and whether it has outlived its usefulness. In particular, it examines the functions which family law seeks to perform via the bundled status of legal parentage and the way in which family law manages conflicting ways of understanding parent‐child relationships via rhetoric centred on ideas of biological truth.
III METHOD AND THEORETICAL APPROACH
The thesis pursues its analysis via an analysis of disputed paternity judgments heard under the Family Law Act 1975 (Cth), Child Support (Assessment) Act 1989 (Cth), and state and territory Status of Children laws between 1975 and 2016, along with the legislation these judgments draw upon. This period captures the beginning of the Family Court, the development of the Child Support Scheme and significant advances in knowledge and testing of genetic parentage. This study critically analyses two key sets of legal texts: first, the legislation which regulates legal parentage;30 and second, judgments using and interpreting that framework in disputed paternity cases in the Family Court, Federal Magistrates Court of Australia, Federal Circuit Court of Australia and a small number of cases from State Supreme Courts.31 The legislative structures along with the facts and orders made in these cases make clear the diverse functions which legal parentage is expected to serve,
30 The focus here is the relevant Commonwealth legislation (primarily the Family Law Act 1975 and the Child Support (Assessment) Act 1989), but where I refer to State or Territory legislation, I use Victorian law as my reference point, though there are some significant differences between jurisdictions. 31 I use the term ‘family courts’ as a collective name to describe the Family Court of Australia, the Federal Magistrates Court of Australia, the Federal Circuit Court of Australia, and the Family Court of Western Australia. In April 2013, the Federal Magistrates Court of Australia was re‐named the Federal Circuit Court of Australia by application of the Federal Circuit Court of Australia Legislation Amendment Act 2012 (Cth).
21
Chapter One ‐ Introduction and the legal complexity required to hold these functions together. These judgments also shed some light on the rhetoric judges invoke when determining legal parentage. The core case study examines 75 disputed paternity judgments, selected according to three criteria: 1. the factual matrix (a dispute as to paternity, where conception was via heterosex); 2. jurisdiction (a dispute under the Family Law Act, Child Support (Assessment) Act, or State or Territory acts governing the status of children32); and 3. date (judgments made from 1975, when the FLA came into effect, up to 2016). To identify relevant cases, searches were carried out on Austlii, Jadenet and CaseBase using keywords and key legislative sections. These are online case law databases that include most Australian family law judgments. This is therefore not an exhaustive study; that these disputes resulted in litigation and a published judgment means that this sample may include a disproportionate share of complexities, such as high‐conflict separations, family violence, substance abuse, and relocation. Given that most family law disputes settle via family dispute resolution rather than court, these judgments give us a limited picture of the outcomes where non‐legal parents seek a parenting role with a child following disclosure or discovery of non‐ paternity.33 Because there were so few available judgments in cases where misattributed fathers sought parenting orders, it is also difficult to get a sense of whether different outcomes reflect shifts over time in judicial approaches, or just reflect the complexities and particularities of each case. This is an area where further research is needed. In addition to the ‘core’ set of parentage cases, the research draws more widely on judgments in related contexts, such as parenting order disputes which include a non‐parent and on judgments from other common law jurisdictions. While most of
32 Status of Children Act 1974 (Vic); Children (Equality of Status) 1976 (NSW); Status of Children Act 197.8 (Qld); Status of Children Act 1974 (Tas); Family Relationships Act 1975 (SA); Status of Children Act 1978 (NT); Parentage Act 2004 (ACT). 33 As noted in Chapter 1, this study did not access all judgments or orders, only those available on Austlii and/ or Casebase.
22
Chapter One ‐ Introduction these judgments are from cases handed down in the last 30 years, in Chapter Two I draw on older cases and legislation to analyse the historical context of the current law. Judgments were grouped according to the main legal issue – eg parenting orders, child support, wills and estates, or other. Each of these judgments was critically analysed against four lines of inquiry: 1. What did the narrative in the judgment reveal about the parent‐child relationships, and the child’s perspective on their relationships and kinship identity? 2. How did judges understand and navigate the functions structured within legal parentage? 3. What rhetoric did judges use to interpret, describe and determine legal parentage? and 4. Which kinds of knowledge (and whose) did judges treat as authoritative – in particular, was there any evidence of the child’s views being heard or considered? In analysing these judgments, this study engages with both ‘functionalist and constructionist accounts of family law’, as John Dewar called them twenty years ago.34 Indeed, for this particular area of family law, one requires the other. In order to examine the functions which legal parentage serves for children, we need to challenge the story that legal parentage is merely a natural fact to be revealed and sometimes declared by the court. Rather, as I shall argue, we need to acknowledge that legal parentage is a legal status which serves a number of functions. As Roberts and Bartholet point out, legal parentage is socially constructed – closely intertwined with hierarchies of power, race and gender.35 This study therefore uses a socio‐legal approach to consider how legal parentage functions. Alongside this functional analysis, it takes a constructionist approach in order to examine and critique how legal rhetoric authorises one type of knowledge (ie of genetic parentage) as ‘the
34 John Dewar, 'The Normal Chaos of Family Law' (1998) 61(4) Modern Law Review 467. 35 Elizabeth Bartholet, 'Guiding Principles for Picking Parents' (2004) 27 Harvard Women's Law Journal 323; Dorothy E Roberts, 'The Genetic Tie' (1995) 62 University of Chicago Law Review 209; Ibid 338. See also Kelly, 'Producing Paternity: The Role of Legal Fatherhood in Maintaining the Traditional Family', above n 15, 351; Collier and Sheldon, above n 15, 236.
23
Chapter One ‐ Introduction truth’ regarding legal parentage.36 Here, the study takes up Robert Van Krieken’s suggestion that we look at law as
… a form of knowledge much like the natural and human sciences, albeit with a unique role to play both in relation to other forms of knowledge production and in relation to the business of power, authority and governance.37
By picking apart the way in which legal parentage has been constructed as a question of ‘truth’, we can reveal how legal parentage functions as a legal status. As Ngaire Naffine suggests in regard to the concept of the legal person, ‘[i]nstead of looking for the core of essential meaning of the entity, its supposed kernel of truth, we ask instead: How does the concept really do its work in law?’38 Our parenthood (being a parent to a particular child) and our parentage (being the child of a particular person) are crucial aspects of our personhood – they locate us within the process of human reproduction and, for most people, are the starting point for our identity and connections with those we call ‘family’. This thesis uses three theoretical tools to analyse the functioning and rhetoric of legal parentage – Ngaire Naffine’s framework of jurisprudential approaches to legal personhood, relational theory, and Brigitte Jordan’s notion of ‘authoritative knowledge’.39 First, the thesis applies Ngaire Naffine’s categories of jurisprudential approaches to the concept of the legal person, as set out in her book, Law’s Meaning of Life.40 This analysis is apt when examining concepts of legal parentage because the rhetoric invoked by judges and legislators when regulating legal parentage within Australian family law shows a similar slippage between legalistic and metaphysical understandings of ‘parent’.
36 Here I borrow the notion of ‘authoritative knowledge’ from Brigitte Jordan, as discussed further in Chapter Four: Brigitte Jordan, 'Authoritative Knowledge and Its Construction' in Robbie E Davis‐Floyd and Carolyn F Sargent (eds), Childbirth and Authoritative Knowledge: Cross Cultural Perspectives (University of California Press, 1997) 55. 37 Robert van Krieken, 'Law's Autonomy in Action: Anthropology and History in Court' (2006) 15 Social & Legal Studies 574, 574. 38 Ngaire Naffine, Law's Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Hart Publishing, 2009) 182. 39 Jordan, above n 36, 55. 40 Naffine, above n 38.
24
Chapter One ‐ Introduction
Like legal personhood, legal parentage attempts to combine what might seem like mutually exclusive functions – reflecting human reality and regulating that reality:
The scope and nature of legal personification are both barometers of social and moral thought and the means of practically enforcing those ideas: of giving them the force of law. Law thus absorbs, reflects and expresses ideas in the broader culture about what and who is of value and why.41
Naffine suggests that jurists use five distinct philosophical approaches to understand the legal person. The first is a Legalist view (a legal person is whoever the law says is a legal person), while the remaining four are metaphysical – based on the idea that legal personhood should reflect ‘some important defining attribute’ of being human. These four metaphysical approaches are centred on biological existence (a Naturalist view), human sanctity (a Religionist view), capacity for reason (a Rationalist view) or relationship with others (a Relational view).42 Naffine’s framework of philosophical approaches helps explain the current patchwork state of the law relating to legal parentage and the way in which family law authorises particular knowledge as the ‘truth’ regarding legal parentage. It makes visible, for example, the persistence of Rationalist arguments about legal parentage even within purportedly Naturalist explanations of legal parentage as mere scientific fact. 43 Second, this is a relational analysis in that it considers how the various parent‐ child relationships discussed in the judgments shape children’s wellbeing and identity. Naffine describes the relational approach as follows:
The guiding idea is that we are formed through relations—the mother‐child bond provides an obvious one—, and that we move through life within, and more importantly as a great shifting constellation of relations. Within relations we become what we are as persons; here, we must make sense of our lives, which in turn must be understood by scholars who wish to explain us. There is never a full separation between persons, and indeed, human beings draw their very identity
41 Ibid 11. 42 Ibid 22. 43 See, for example, Riethmuller FM’s assertion that only men who ‘desired, and directly facilitated’ the conception – eg as commissioning parents in surrogacy – can be considered to have ‘begotten’ the child: Baker & Landon [2010] FMCAfam 280 [42], [43] (Reithmuller FM).
25
Chapter One ‐ Introduction
from their relations. When they work well, relations are not only formative (and unavoidable) but also conducive to human autonomy and to the flourishing of the individual. It follows that the role of law is to regulate relations rather than to ward them off. Law’s job is to ensure that they run smoothly and that they neither oppress nor harm us.44
This analysis therefore starts from what Robert Leckey calls the ‘descriptive premise’ of relational theory: ‘that persons are socially embedded and that their identities form within the context of social relationships’.45 A relational approach asks, for example, how law ‘currently structures relations between men and women and how that structuring can be altered to reduce violence and improve equality’.46 Moreover, it interprets children’s welfare or best interests in the context of their relationships. Jonathan Herring writes,
This is an approach based on the idea that children are raised in relationships and that the best way of promoting a child’s welfare is to ensure that the child is brought up in healthy relationships. Such family relationships involve give and take. They will not always require that children’s interests on a particular question are prioritised… Indeed, it is impossible to construct an approach to looking at a child’s welfare which ignores the web of relationships within which the child is brought up. Supporting the child means supporting care‐giver and supporting the care‐giver means supporting the child.47
In examining how legal parentage works to structure parent‐child relationships, this study takes what Leckey dubs ‘the strong conception of a relational approach’. It therefore pays attention not just to children’s relationships, but to law’s role in fostering
44 Like the ‘Liberal Legal Individual’ Ngaire Naffine discusses: Ngaire Naffine, 'Review Essay: The Liberal Legal Individual Accused: The Relational Case' (2014) 29 Canadian Journal of Law and Society 123. 45 Robert Leckey, Contexual Subjects: Family, State and Relational Theory (University of Toronto Press, 2008) 7. See also Jennifer Nedelsky, Law's Relations: A Relational Theory of Self, Autonomy and Law (Oxford University Press, 2011); Helen Rhoades, 'Revising Australia's Parenting Laws: A Plea for a Relational Approach to Children's Best Interests' (2010) 22 Child and Family Law Quarterly 172; Susan B Boyd, 'Autonomy for Mothers? Relational Theory and Parenting Apart' (2010) 18 Feminist Legal Studies 137. 46 Nedelsky, above n 45, 16. 47 Jonathan Herring, 'Farewell Welfare?' (2005) 27 Journal of Social Welfare and Family Law 159, 166.
26
Chapter One ‐ Introduction and protecting those relationships which children rely on for protection and which enable their autonomy to develop as they grow. For example, Jonathan Herring suggests that the state and law have a role to play in creating ‘the conditions where a person can exercise their autonomy by entering a relationship which receives support and protection by society’ and ensuring that ‘a person is not disadvantaged by entering such a relationship’.48 Leckey writes:
… the strong conception of a relational approach is frankly substantive and normative. It is not indifferent to the kinds of relationships that should be regarded as desirable in a particular setting.... Nailing its colours to the mast, it adopts relational autonomy as its highest or one of its highest values. It is committed to promoting optimal relationships and it has a substantive criterion for identifying them. Optimal or desirable relationships are ones that foster or promote relational autonomy.49
Third, in analysing the judgments and legislation, this study also pays close attention to the ways in which different kinds of knowledge (for example, DNA parentage results, testimony about conception, and information about how children understood their relationships) were authorised or dismissed as ‘truth’ or ‘lies’, drawing on concepts of authoritative knowledge.50 Many of the judgments are at first instance, allowing for a close analysis of how judges match up the parties appearing before them and the children in question into categories of ‘parent’, ‘mother’, ‘father’ and ‘child’, and the ways in which the parent‐child relationship is construed. In order to consider the usefulness of legal parentage in terms of its structure and rhetoric, this study also contextualises the analysis by examining parentage dispute judgments in other contexts such as surrogacy, donor conception, same‐sex parenting
48 Jonathan Herring, 'Relational Autonomy and Family Law' in Julie Wallbank, Shazia Choudhry and Jonathan Herring (eds), Rights, Gender and Family Law (Routledge, 2009) 257, 263. 49 Leckey, above n 45, 14. 50 Jordan, above n 36, 55.
27
Chapter One ‐ Introduction and kinship care – and by drawing on social science research on children’s rights and perspectives. In assessing how legal parentage functions, my focus is primarily on how it works for the children whose legal parentage is in question. How well does it address their needs and interests, and how does it treat their knowledge of their lives and their subjectivity as legal persons? This study therefore works from a child‐centred perspective, building on understandings of children not as ‘passive objects of law’, but as ‘subjects with agency’.51 It does so as a policy choice, but also in recognition of Australia’s international obligations under the United Nations Convention on the Rights of the Child, and the emphasis within the FLA on the best interests of the child.52 This is a child‐centred perspective which is informed by an approach to children’s rights and citizenship which recognises their personhood, developing autonomy and knowledge. As Rosemary Hunter puts it:
Children are not simply a product of parenting, but have identities separate from
their parents; they are acknowledged to be 'experts in their own lives', who should therefore be involved in decisions made about them.53
This conception of children’s rights suggests that treating children with respect for their human dignity means giving them ‘voice about any issues which affect their lives’ and the opportunity ‘wherever possible to exercise choice’.54 Nonetheless, this study also acknowledges that children’s wellbeing and development is strongly relational – and therefore affected by the wellbeing of the adults they rely on for care.55 Throughout, the thesis seeks to place law within its social contexts, drawing on disciplines outside law. In particular, it explores the history of legal parentage, uses
51 Hunter, above n 27; Tisdall, 'Subjects With Agency? Children’s Participation in Family Law Proceedings', above n 27; Lowe and Murch, above n 27; Tisdall, 'Children’s Rights and Children’s Wellbeing: Equivalent Policy Concepts?', above n 27; Tobin, above n 27. 52 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (ratified by Australia 17 December 1990). See, for example, the objects of Part VII set out at Family Law Act 1975 (Cth) s 60B. 53 Hunter, above n 27, 283. 54 Lee Ann Basser, 'Human Dignity' in Marcia H Rioux, Lee Ann Basser and Melinda Jones (eds), Critical Perspectives on Human Rights and Disability Law (Brill, 2011) 17, 28. 55 See, Rhoades, above n 45.
28
Chapter One ‐ Introduction anthropological ideas of kinship and authoritative knowledge, and considers the relevance of psychological research around attachment and the socio‐psychological aspects of parent‐child relationships. These interdisciplinary analyses are necessary in order to unpick the ways in which law has come to borrow from other bodies of knowledge in defining and structuring legal parentage.
IV ARGUMENTS
This thesis identifies two key problems with the current concept of legal parentage. The first is a structural one – being the way in which legal parentage locks together diverse functions within the one legal status, so that a change affecting one function can disrupt the other three. Second, the glue that binds these diverse functions into the one legal status of ‘parent’ is the rhetoric – which I refer to as biotruth – that a child’s ‘true’ parents are the woman and man who have ‘borne or begotten’ the child, and that social parents who do not fit these categories are somehow ‘fictional’ or ‘artificial’.56
A Four disparate functions within legal parentage
First, this thesis argues that the complex statutory and common law framework of legal parentage reveals four distinct functions which legal parentage is expected to serve all at once for all children. Legal parentage purports to 1. record information about children’s origins; 2. identify who has parental responsibility for them (ie who makes care and other decisions for them); 3. define their legal kinship identity; and 4. identify who is responsible for providing economically for their needs. The more a child’s family situation diverges from the norm of the genetically‐related heterosexual nuclear family model, the more likely these functions are to come into conflict. Because these four functions are bound together in the one legal relationship
56 Tobin v Tobin [1999] FamCA 446 [40], [42] (Finn, Kay and Chisholm JJ). BM & DA [2007] FMCAfam 770 [239] (Henderson FM) describing s 60H as 'the artificial definition of a parent'. See also, Simpson & Brockmann [2010] FamCAFC 37; Baker & Landon [2010] FMCAfam 280 [37] (Reithmuller FM); Groth & Banks [2013] FamCA 430 (Cronin J).
29
Chapter One ‐ Introduction status, changing a child’s legal parentage to realign it with one function (providing information about biogenetic origins) may have consequences for how well the child’s legal parentage serves the remaining functions. Despite judges often characterising legal parentage as a simple fact, on closer examination, it is riddled with complex exceptions and presumptions and fuzzy definitions. The complexity surrounding legal parentage stems from the diverse purposes it is expected to serve. The disputed paternity cases reveal four distinct functions at play. First, legal parentage is expected to provide information about a child’s origins. For example, a number of parentage cases include an order that the child’s birth certificate be ‘corrected’ – for instance, to remove a non‐genetic father from the child’s birth certificate and replace him with a genetic one.57 Second, legal parentage allocates default parental responsibility from birth – ie who makes day‐to‐day and long‐term decisions about where the child lives, and with whom the child spends time. This encompasses powers regarding consent for medical care, passports, travel and school enrolments. This parental responsibility lasts as long as a child lacks capacity – until the age of eighteen, or earlier if the child is found to be ‘Gillick competent’ to make medical decisions,58 or if court orders under the FLA or child protection legislation are made to remove, modify or suspend a parent’s default parental responsibility.59 It is possible, therefore, to ‘unbundle’ the powers associated with parental responsibility (and the right for a child to spend time with or live with a legal parent) from legal parentage, though it requires parenting orders under the FLA. The potential of this ‘unbundling’ for addressing some of the disadvantages for children of the current model of legal parentage is analysed in Chapter Five. Third, legal parentage determines a child’s legal kinship identity: in which family does this child belong? Who is their next of kin? Who is in a kinship relationship with
57 For example, Re C and D [1998] FamCA 98; DOCS v A [2000] NSWSC 1179; C & G v M [2001] FMCAfam 83. 58 ‘Gillick competence’ refers to the test set out in Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 113, (Lord Scarman). In that case, the House of Lords held that a minor is considered competent to consent to medical treatment once they achieve a ‘sufficient maturity and intelligence to understand the nature and implications of the proposed treatment’. 59 For example, permanent care orders under s 321 or a Care by Secretary orders under s 289 of the Children Youth and Families Act 2005 (Vic).
30
Chapter One ‐ Introduction the child? For example, does the child count as a ‘grandchild’ or ‘relative’ for the purposes of inheritance? This is an inherently relational function. A legal kinship identity situates a person relationally as a family member with legal connections to other family members as a result of their relationships with one another. Legal parentage also affects a person’s legal kinship identity in pragmatic ways in that birth certificates have become one of our key identity documents – used to enrol children in school, open bank accounts, apply for passports and so on. For example, in DOCS v A, the Director‐General of the Department of Community Services sought a declaration of parentage under the NSW Status of Children Act 1996 for a child in state care (D) who had been born to a twelve‐year‐old girl (A) where it appeared that conception had been the result of incest with her brother (B, aged 13 at the time). Chief Justice Hodgson expressed concerns that ‘production of D's amended birth certificate when D first attends school could prejudice D and lead to risk of wider disclosure to the disadvantage of A and B’ and requested that the parties provide further submissions on this point.60 Solicitors for the Director‐General:
advised that the Director‐General was prepared to undertake to supply carers of D with a birth extract certificate, not a full birth certificate, and would use this when enrolling the child at a school… [and] submitted that the Minister, as guardian of the child, would give consent to activities and authorise carers to collect the child from school.61
Hodgson CJ appeared satisfied with these undertakings, and made the declaration of parentage, having been persuaded on the balance of probabilities that B was the father of the child (A and B’s mother refused consent for genetic testing).62 As discussed by Hodgson CJ, some of these pragmatic functions can be met with a birth extract – a shorter version of the birth certificate listing only name, date of birth and place of birth – or, as discussed above, a parental responsibility order. There remains, however, something significant about a birth certificate as an acknowledgement of an individual’s personhood and legal kinship status and identity. A
60 DOCS v A [2000] NSWSC 1179 [31]. 61 Ibid [36]. 62 Ibid [48].
31
Chapter One ‐ Introduction birth certificate cannot hope to reflect the full complexity (and sometimes, dynamism) of a particular person’s identity, but where there is a significant dissonance between someone’s self‐identification and their legal identification, it can cause practical problems, and can be an affront to that person’s dignity and their self‐knowledge.63 Being a legal parent means that the relationship is recognised for the purposes of inheritance or migration, and the power to name a child is treated as something special belonging to parents, at least until a child is over eighteen and entitled to change their own name. Legal parentage, like marriage, is also a relationship status in and of itself beyond the rights and powers which flow from it. These features of legal parentage cannot be shifted via parenting orders for parental responsibility. A child’s legal kinship identity is something that is built over time and is intermeshed with the child’s social family relationships. As Carol Smart observes, ‘law operates to create recognised and recognisable forms of kinship.64 A retrospective change to legal parentage can, therefore, affect those social relationships and the inheritance laws which treat those relationships as significant, as well as wreaking havoc on a child’s sense of identity and kinship.
This kinship identity function of legal parentage was part of the impetus for reforms around the various states and territories as well as under the FLA to extend the status of legal parent to non‐biological parents in same‐sex parented families. For example, the Victorian Law Reform Commission expressed concern in 2007 that the then lack of recognition of non‐biogenetic parents in same sex families meant that ‘these children lack many of the rights and protections afforded to all other children’, arguing that ‘all children should have the same protection of the law, regardless of their family structure’.65 As a result of this inquiry, the Victorian laws were amended to recognise
63 There are significant resonances between the legal kinship identity aspect of legal parentage and gender recognition (as Lau calls it) in the ways that judges sometimes authorise genetic or biological knowledge about a person as ‘the truth’ in order to resolve a person’s legal identity. These are explored further in Chapter Four, Part IIA. Lau, above n 5 64 Carol Smart, 'Making Kin: Relationality and Law' in Anne Bottomley and Simone Wong (eds), Changing Contours of Domestic Life, Family and Law (Hart, 2009) 7, 12. 65 Victorian Law Reform Commission, Assisted Reproductive Technology & Adoption, Report no 10 (2007) 7. See also, New South Wales Law Reform Commission, Relationships, Report No 113 (2006) 92, which
32
Chapter One ‐ Introduction non‐biological lesbian parents as the legal parents of their children where they were in a domestic relationship with the biological parent, and consented to the assisted conception process.66 More recently, in its report on the Adoption Act, the Victorian Law Reform Commission recommended implementation of integrated birth certificates.67 This reform would enable adopted people to choose to list both birth and adoptive parents on one birth certificate. It would therefore recognise that the four functions of legal parentage cannot always all be served by one set of ‘parents’ and that origins information (and perhaps also legal kinship identity) will for some children include more than two parents. Indeed, integrated birth certificates raise the possibility that parents listed on the birth certificate are not necessarily also parents for other purposes. Finally, legal parentage allocates economic responsibility for the child, making it possible for the Child Support Registrar to assess child support, and enabling the Family Court to treat the child as a child of the family for the purposes of maintenance or property orders. These four functions are bound together within the concept of legal parentage so that every legal parent – a maximum of two for each child – is:
1. listed on the birth certificate as parent; 2. designated to hold default parental responsibility (and the benefit to the child of a ‘meaningful relationship’ with them is a primary consideration in any parenting orders determination); 3. defined as next of kin (at least until the child marries), their extended family relationships define one side of the child’s legal kinship relationships; and
concluded that ‘limited legal recognition of the functional parent/child relationship has the potential to disadvantage the children of those in non‐traditional relationships’. 66 Status of Children Act 1974 (Vic), Part III. 67 Victorian Law Reform Commission, Review of the Adoption Act 1984 (2017), xv.
33
Chapter One ‐ Introduction
4. liable to be assessed for child support.
This bundled structure is held together by a notion of legal parentage as a question of fact, and rhetoric conflating the factual nature of information about genetic origins with the concept of legal parentage (discussed further below). There are some other legal avenues available to carry out some of these functions. In the case of origins information for adopted people and those born via donor conception and/or surrogacy, it is now possible (at least in Victoria) for many people in these categories to obtain identifying details of their birth parents and gamete donor(s).68 These state‐ and territory‐based registration systems allow adopted or ART‐ conceived people to search for and make contact with birth parents, gamete donors or surrogate mothers, without impacting the child’s legal parentage.69 These registration systems operate independently, however, of the child’s current birth certificate. In the case of adopted people, a new birth certificate is issued at the time the adoption order is made, listing the adoptive parents as parents, and erasing the birth parents from that status. If the adopted person wants a copy of the original birth certificate, they must make a special application to the relevant body.70 The recent Victorian Law Reform Commission Report on Adoption indicates that there is a policy movement toward integrated birth certificates which could list both birth and
68 Assisted Reproductive Treatment Act 2008 (Vic) requires any past or current provider of ART treatment to maintain records and to provide them to the Victorian Assisted Reproductive Treatment Authority for inclusion on the Central Register (Part Six), and regulates release of donor information to people born as a result of a donor treatment procedure, their parents and their children, even if the donor does not consent to contact. Similarly, the Adoption Act 1984 (Vic) creates the Adoption Information Register (s 103) and enables adopted persons, their adoptive and relinquishing parents to apply for access to information on the Register about the adopted person’s birth family. 69 There are some complexities here. For example, in the case of known donors to women without a husband or de facto partner, there have been a number of cases in which family court judges have declared the donor to be a legal parent, despite conception being via ART. Groth & Banks [2013] FamCA 430 (Cronin J); Masson & Parsons [2017] FamCA 789. 70 For example, in Victoria, adoptees must apply via an Approved Adoption Information Service unless they can demonstrate knowledge of the contents of the birth certificate. Those adoptees who can demonstrate knowledge of the contents of the birth certificate (along with natural parents) can apply directly to Births Deaths and Marriages. Births Deaths and Marriages Victoria, The Role of the Registry of Births, Deaths and Marriages in Relation to Adoption (22 June 2018) Adoptions
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Chapter One ‐ Introduction adoptive families – in potentially breaking down a little of the wall between adoption records and current birth certificates.71 Similarly, for donor‐conceived people, information about their genetic origins appears not on their birth certificate, but in the various State and Territory donor registers. For example, in Victoria, the Central Register is maintained by the Victorian Assisted Reproductive Treatment Authority (‘VARTA’).72 It is up to parents to decide whether and when to inform their child that they are donor‐ conceived. If their child applies for a copy of their birth certificate once they are over eighteen, it will include an addendum noting that ‘further information is available’ about their birth entry in the register.73 As mentioned above, the default parental responsibility which attaches to legal parents can be reallocated by court orders under Part VII of the Family Law Act, or by orders under the various State and Territory child protection regimes.74 Jurisdiction to make parenting orders or child protection orders is only available where there is some problem with parental authority (or jurisdiction) over the child. This may be because the parents are in conflict about how to exercise it – in terms of deciding the arrangements for the child’s care and decision‐making. Or it may be because a parent or parents have died or otherwise become unable or unfit to care for the child. Either way, parental authority acts as a hurdle which the court must clear before exercising its parens patriae jurisdiction to make decisions in the best interests of the child. Even then, the very concept of parens patriae positions the state (via the powers of the court) as the ultimate parent, with concomitant authority to decide what is best for children. This is a model firmly grounded in welfare thinking (what is in the best interests of the child) rather than autonomy thinking (supporting and protecting the child as they develop capacity to decide for themselves).
The court may remove parental responsibility from a legal parent by ordering that it be held solely by the other parent, or by someone who is not a parent – such as a grandparent or a ‘person concerned with the care and development of the child’ under
71 Victorian Law Reform Commission, Review of the Adoption Act 1984 (2017). 72 Assisted Reproductive Treatment Act 2008 (Vic), Part Six. 73 Births, Deaths and Marriages Registration Act 1996 (Vic) s 17B. 74 See, eg, under the Children Youth and Families Act 2005 (Vic).
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Chapter One ‐ Introduction s 65C. Orders regarding parental responsibility (ie power to make decisions regarding the child, such as day‐to‐day food and activities, or long‐term such as school enrolment or religious affiliation) come under the broader heading of parenting orders, which also include orders regarding with whom a child lives and spends time. A key distinction here is that parenting orders are determined based on the paramountcy principle – the idea that the best interests of the child in question should prevail over any other considerations. The interaction between parenting orders, legal parentage and questions of parental authority and jurisdiction is considered in further detail in Chapter Five, where I consider whether parenting orders compensate for (or remedy the effects of) legal parentage’s bundled structure.
These four functions of legal parentage persist for different periods within the life of the child. Being listed on the birth certificate and being defined as legal kin is life‐ long, whereas parental responsibility and child support liability end at the age of 18, or for some decisions, when the child reaches capacity to make the decision (ie Gillick competence).75 The bundling of these functions, and the expectation that only two legal parents will fulfil them all, means that there is sometimes a mismatch between context and function. For example, in Tryon & Clutterbuck, the putative biological father wanted parenting orders and to be recognised as the biological father, but the way that legal parentage bundles all four functions meant making those orders stripped the children of their legal relationship with their social father and his kin.76
One of the strengths of Australia’s parenting provisions under the Family Law Act is that a person need not be a ‘parent’ or ‘grandparent’ in order to obtain parenting orders, as long as they are a ‘person concerned with the care, welfare or development of the child’.77 This reflects a conception of the best interests of the child that acknowledges the importance to a child of the bonds that arise from repeated care
75 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. 76 Tryon & Clutterbuck (No. 2) [2009] FamCAFC 176. 77 Family Law Act 1975 (Cth) s 65C.
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Chapter One ‐ Introduction interactions and intimacy when someone functions as a parent. This approach draws on the psychological theories of Goldstein, Freud and Solnit, which argue that: … every child requires continuity of care, an unbroken relationship with at least one adult who is and wants to be directly responsible for his daily needs. It recognises the importance of the psychological ties that develop over time between a child and the adults who continuously provide for his day‐to‐day care. It acknowledges that the existence of these familial bonds need not depend upon the technicality of the biological or legal relationship between a child and an adult.78
These relational considerations are an important part of parenting order determinations (discussed further in Chapter Five), but have no role in determining legal parentage. As the law is currently structured, it is not possible to protect both a child’s interest in knowledge of their genetic heritage and their interest in stable legal kinship identity. This is because the common law definition of ‘parent’ conflates genetic and legal parentage and locks together disparate functions within the one concept of legal parentage. A parentage testing order may not only deliver knowledge of genetic heritage; it may also change the child’s legal parentage and legal relationships – potentially impacting on the child’s best interests beyond those resulting from the disclosure of genetic information. To take an adoption analogy, the impacts for a child of disclosing information about their biological parents would be very different to suddenly invalidating the adoption and returning legal parenthood to the biological parents, but this is effectively what the law does in regard to misattributed fathers and children. In an adoption context, however, our law attempts to protect the child’s interests both in knowing his or her genetic identity, and in maintaining secure legal
78 Joseph Goldstein, Anna Freud and Albert J Solnit, Before the Best Interests of the Child (The Free Press, 1979), 39‐40.
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Chapter One ‐ Introduction parentage which reflects the child’s lived family.79 The same is not currently possible in misattributed paternity cases. The multi‐purpose nature of legal parentage also means that arguments relating to one purpose are (sometimes disingenuously) raised when a party challenges parentage for another purpose. This was seen in Brianna, where, on the parties separating, the husband sought genetic parentage testing in a context where he had met the mother when the child was over a year old, but had signed the child’s US birth certificate as ‘father’ as well as a waiver of all rights to challenge paternity.80 It appeared that the husband’s motivation for requesting testing was to avoid child support liability,81 and there seemed to be no prospect of identifying the child’s biogenetic father. Bryant CJ’s analysis, however, focused on the importance of knowledge about genetic paternity for the child’s ‘sense of identity’.82
What, then, are the social and legal consequences for the child of a retrospective change to their legal parentage? For many children whose parentage is in dispute, the change occurs in the context of the breakdown of the relationship between their mother and presumed father. The child therefore experiences three losses within a short period – the breakdown of the parental relationship, discovery that they have no genetic relationship with their presumed father, and loss of a legal relationship with him and all his kin, including the child’s identity as a member of that family. On top of this, many presumed fathers sever their parenting relationship with the child, so that the child also
79 The bundled structure of legal parentage means that it requires an outside mechanism to separately address the child’s biogenetic parentage, such as the Adoption Information Services in Victoria: Births Deaths and Marriages Victoria, Services provided to people affected by adoption (8 March 2018) Adoptions
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Chapter One ‐ Introduction loses their presumed father as a social parent.83 The consequences for the child’s relationship with a presumed father are difficult to measure – particularly as there is often a chicken‐and‐egg question about whether presumed fathers with more fragile attachments are more likely to challenge paternity, or whether law’s focus on genetic parentage undermines presumed fathers’ confidence in their attachment to their children. In the judgments studied here, children’s loss of connection with misattributed fathers was often due to those misattributed fathers extracting themselves from any parental role. The judgments give little insight into the reasoning behind these men’s choices, and this study can only speculate about the role that law may play to invalidate these men’s role as parents and to frame severing connections and seeking a refund of child support payments as the rational response. Further qualitative research with men in these situations would be required in order to understand how loss of a legal parent‐ child relationship may change how they make sense of their role and identity and their choices. What is clear from this analysis of parentage law, however, is that once a court finds that genetic parentage has been misattributed for a heterosexually conceived child, the choice to continue as legal father is not available to the misattributed father. He may decide to seek parenting orders, but the legal kinship bond between him and the child is fundamentally changed so that he and his kin become legal strangers to the child. Given that the cases generally arise in the context of a breakdown in the relationship between misattributed father and the child’s mother, the option of step‐ parent adoption would also be closed.84 Where a man is aware that he is not a genetic father, or has doubts, he may seek to preserve the legal relationship between him and the child by keeping that information out of the court. That may not be possible if the child’s mother or genetic father wish to challenge the child’s legal parentage. It inevitably forces people to keep secrets regarding a child’s genetic origins – something
83 See, eg, presumed fathers in Henning & Henning [2012] FMCAfam 119; Levine & Levine [2011] FMCAfam 821; Ames & Ames [2009] FamCA 825; DRP v AJL [2004] FMCAfam 440. 84 Step‐parent adoption is only available for a spouse of a parent. See, eg, Adoption Act 1984 (VIC) s 11(5), 11(6).
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Chapter One ‐ Introduction which adoptees and donor‐conceived people have identified as harmful, and which studies indicate can be damaging for parent‐child relationships.85
B Biotruth binds these four functions
The logic binding these four functions into the legal concept of legal parentage is the idea that ‘true’ parentage is a natural and biological relationship – a fact which law merely reflects rather than a legal status or determination. This rhetoric is exemplified in one of the most cited observations on legal parentage, made over 20 years ago by Fogarty J: ‘[p]aternity is now a medical and not a legal issue. Society is entitled, through the legislature and the Courts, to an inexpensive, prompt and virtually certain procedure to decide this question’.86 This notion, that there is one underlying truth about parentage that legal parentage should reflect, is appealing. It is particularly so given the growing complexity of modern families and the loss of marriage as a definitive marker of legal fatherhood. Yet when we examine the cases and legislation, it is quickly apparent that legal parentage is a complex legal determination, not simply a question of fact. Parentage law in Australia therefore exists within a paradox: its simple rhetoric of ‘truth’ contrasts with the reality of complex interactions between the common law definition and various statutes, and is increasingly challenged by the increasing complexity and diversity of family practices. Parentage law manages this paradox by transcribing non‐biogenetic parents (such as via adoption or donor conception) into the position of biogenetic parents. Biogenetic parentage is therefore used as the key story about why parents care
85 Helen J Riley, 'Listening to Late Discovery Adoption and Donor Offspring Stories: Adoption, Ethics and Implications for Contemporary Donor Insemination Practices' in Ceridwen Spark and Denise Cuthbert (eds), Other People's Children: Adoption in Australia (Australian Scholarly Publishing, 2009) 145, 4, 10, 13 and throughout; Diane Beeson, Patricia Jennings and Wendy Kramer, 'Offspring Searching For Their Sperm Donors: How Family Type Shapes the Process' (2011) 26 Human Reproduction 2415, 2418; Susan Golombok and Fiona Tasker, 'Socioemotional Development in Changing Families' (2015) 3 Handbook of Child Psychology and Developmental Science 23. But, see also Carol Smart, 'Family Secrets: Law and Understandings of Openness in Everyday Relationships' (2009) 38 Journal of Social Policy 551; Guido Pennings, 'Disclosure of Donor Conception, Age of Disclosure and the Well‐Being of Donor Offspring' (2017) 32 Human Reproduction 969; Susan Golombok, 'Letter to the Editor: Disclosure and Donor‐ Conceived Children' (2017) 32 Human Reproduction 1532. 86 G & H [1993] FamCA 39 [79,942] (Fogarty, Straus and Wilczek JJ).
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Chapter One ‐ Introduction for children and why they are important to children. Where legal parentage extends to a non‐biogenetic parent, it is always by analogy to biogenetic parentage. In determining children’s legal parentage ostensibly as a question of ‘truth’, judges are engaging in what Faulk and Brunnegger describe as ‘the production and legitimization of certain forms of legal meaning and procedures over others’. 87 A key pattern observed in the judgments examined here is the way in which some knowledge is legitimised as ‘the truth’ within a hierarchy of knowledges – thereby dismissing other knowledge as ‘a lie’.88 The emphasis on evidence of genetic parentage as authorised knowledge therefore trumps children’s knowledge of their lived relationships and any other knowledge about the existence and quality of any parent‐child relationship between the misattributed father and child. Biotruth rhetoric relies on simplistic and outdated notions of genetic parentage and identity, which, on examination, owe more to narratives about human reproduction as a gendered exchange of (women’s) reproductive services in return for (men’s) material support than they do to science. Despite the language of biology and naturalness, Biotruth rhetoric combines Naturalist norms about family structure and gender roles with a Rationalist emphasis on upholding men’s intentions and choices regarding their role as fathers. This combination of Naturalist and Rationalist approaches to defining ‘parent’ has hardened into a rhetoric of legal parentage as a simple question of biological ‘truth’, which is at odds with the more complex state of the law, and which pays inadequate attention to children’s relational reality and knowledge of their own lives, relationships and identities. This leaves children like the sixteen‐year‐ old in Levine vulnerable to sudden, retrospective changes in their legal parentage, which may in turn be associated with the loss of a significant parenting relationship. This thesis argues that biotruth rhetoric, which continues to influence judicial decision‐making, impedes critical reflection on the reasoning driving law‐making and decision‐making regarding legal parentage. It therefore limits the courts’ ability to hear children’s perspectives on their relational realities – whom they relate to and rely on as
87 Karen Ann Faulk and Sandra Brunnegger, 'Introduction: Making Sense of Justice' in Sandra Brunnegger and Karen Ann Faulk (eds), A Sense of Justice: Legal Knowledge and Lived Experience in Latin America (Stanford University Press, 2016) 10. 88 See Chapter Four.
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Chapter One ‐ Introduction parents. It leaves some children vulnerable when the parenting relationships which they depend upon are not legally recognised.
V OUTLINE OF CHAPTERS
This thesis challenges the story of legal parentage as a mere reflection of biogenetic parentage by contrasting it with the complexities which characterise the functions served by, and rhetoric surrounding, legal parentage. These twin inquiries and arguments of the thesis – as to the functions of legal parentage and the rhetoric and knowledge surrounding it – interweave throughout the thesis. This analysis begins by exploring the history of legal parentage (in Chapter Two) and examining the impact of the abolition of illegitimacy in shifting understandings of legal parentage from a legal status to a ‘natural’ fact. Chapter Three contrasts the simple story about legal parentage as a question of biological truth with the complex way in which our current law bundles a number of functions within legal parentage. It examines the difficulties created by this bundling where a child’s genetic paternity is disputed. Chapter Four analyses and unpicks the assumptions about genetics, biology, identity, truth, justice and best interests which underlie the biotruth story. Chapter Five examines the potential for parenting orders to moderate the rigidity of legal parentage by unbundling the functions of care and parental responsibility from legal parentage. Chapter Six then considers the case for hearing children’s perspectives and knowledge of their relational reality before making changes to their legal parentage – drawing on existing mechanisms to hear children’s perspectives on questions of their care, and the movement within adoption reform to hear children’s views. It suggests that putting children at the centre of legal parentage may mean making significant changes both to the way in which legal parentage bundles a number of functions and to the hierarchical way in which legal parentage treats different kinds of knowledge regarding parent‐child relationships. Chapter Seven then pulls together the threads of the thesis and its implications for law reform.
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Chapter Two – Historical Context
CHAPTER TWO – A Tale of Two Fatherhoods: The Historical Context of Legal
Parentage and Genetic Paternity
This chapter explores the historical and social context in which multiple functions have become bundled into the single concept of legal parentage. It historicises the bundled structure of legal parentage and the rhetoric holding it together as the products of particular social and legal changes, and challenges the story that legal parentage has always been a reflection of ‘natural’ or ‘true’ parentage. The central focus here is on legal understandings of fatherhood and how the significance given to genetic paternity within those understandings changed fundamentally with two key developments during the late twentieth century. First, the abolition of illegitimacy and the dismantling of the evidentiary protections surrounding the presumption of legitimacy changed the role of marriage in determining legal fatherhood.1 Richard Collier describes how equivalent changes in the United Kingdom (UK) meant that ‘marriage … ceased to be the central vehicle of family law in the process of safeguarding (legal) fatherhood’.2 Second, the introduction of the Australian Child Support Scheme (CSS) further changed the relevance of marriage to legal parentage, and transferred much of the work of determining legal parentage from affiliation proceedings to interlinked administrative mechanisms within the child support and welfare systems. Both of these developments reflected and wrought social change, and, I argue, are vital to understanding how family
1 The abolition of illegitimacy followed similar legislative steps in each Australian state and territory, with the exception of Western Australia, which achieved a similar result by amending particular statutes affecting succession and property distribution: Administration Act 1903 (WA); Adoption of Children Act 1896 (WA); Inheritance (Family and Dependants Provision) Act 1972 (WA) and Wills Act 1970 (WA). Section 35 of the Family Law Act 1975 (WA) provides that mother of an ex‐nuptial child has the custody and guardianship of the child (subject to any orders made under the Family Court Act 1975 (WA) or under the adoption laws). When discussion of the legislative detail is required, this chapter uses Victoria as a case study. 2 Richard Collier, ‘“Waiting Till Father Gets Home”: The Reconstruction of Fatherhood in Family Law' (1995) 4 Social & Legal Studies 5, 14, citing Selma Sevenhuijsen, 'The Gendered Juridification of Parenthood' (1992 ) 1 Social & Legal Studies 71, 80.
43 Chapter Two – Historical Context law came to conflate knowledge of biogenetic parentage with legal parentage status for most children. In analysing these two reforms, the chapter argues that the twentieth century witnessed a remarkable shift – from understanding legal fatherhood as a legal status associated with marriage which might or might not coincide with ‘biological’ parentage towards understanding it as law merely ascertaining a natural fact. This was a shift, broadly, from what Naffine would describe as a Legalistic approach to legal parentage (a legal parent is whoever the law says is a legal parent) towards a Metaphysical approach (legal parentage reflects an essential truth about being a parent).3 Within the Metaphysical approaches identified by Naffine, the emphasis on biogenetic parentage suggested a Naturalist approach, though Rationalist concerns about fairness to men ‘accused’ of fathering children were also at play. In tracing this shift, the chapter also traces some continuities – such as the persistence of presumptions of parentage which enabled parentage to be established on the basis of social (rather than biological) facts. The chapter is structured as follows. Part I analyses how legitimacy functioned to distinguish legal parentage status from knowledge of ‘natural’ or ‘putative’ fatherhood. Part II argues that the abolition of illegitimacy and dismantling of the evidentiary protections of the presumption of legitimacy erased those distinctions and unified those categories into a notion of legal parent as a pre‐existing natural fact rather than a legal status. Part III examines the introduction of the CSS, and suggests that its architects sought to create a new economic norm of financial parental obligations following genetic parentage, strengthening the shift towards legal parentage as a bundled and universal legal concept. Finally, Part IV argues that how common elements between these two legal developments helped shape the notion of legal parentage as simply echoing knowledge of biological ‘truth’ and ‘naturally’ arising obligations.
I HUSBANDS (LEGAL FATHERS) V ‘NATURAL’ FATHERS
Prior to the abolition of illegitimacy, marriage had several functions. It provided a legal mechanism to link husbands to their wives’ children for the purposes of
3 Ngaire Naffine, Law's Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Hart Publishing, 2009).
44 Chapter Two – Historical Context transmitting property, names and titles, and creating support obligations. It also regulated (what was then called) custody of and parental authority over children. The legal parenthood of the husband therefore governed the child’s legal kinship identity, via a system of patrilineal and patriarchal kinship. According to Barbara Rothman:
Patriarchal kinship is the core of what is meant by patriarchy – the idea that paternity is the central social relationship. A very clear statement of patriarchal kinship is found in the book of Genesis, in the "begats." Each man, from Adam onward, is described as having "begotten a son in his likeness, after his image."4
So fundamental was the concept of illegitimacy to British law (and more particularly, to the patrilineal transmission of property and title), that it was included in what is thought to be the first British statute, the Statute of Merton, which provided: ‘He is a bastard that is born before the marriage of his parents’.5 To be illegitimate was to be filius nullius – the son of no one – adrift of any legal connections to family, and only able to inherit via a specific gift in a will, excluded from the legal kinship categories of ‘child’, ‘grandchild’, ‘nephew’, ‘niece’ etc.6 Even if ‘natural’ paternity was ascertained by an affiliation order, the child did ‘not become a member of his father’s family, the natural relationship by blood remaining without any effect apart from criminal law’.7 Before the nineteenth century, legitimacy and marriage primarily mattered for the purposes of transferring property and power between the generations. With the birth of the modern nation state – a state which became concerned with disciplining the reproduction of its citizens – legal parentage became crucial in framing the relationship
4 Barbara Katz Rothman, 'Daddy Plants a Seed: Personhood under Patriarchy' (1996) 47 Hastings Law Journal 1241, 1244 citing Genesis 5:3. 5 Statute of Merton 20 Hen 3, ch 9, 1 Stat at large 31 (1235). 6 Ronald Sackville and Annemaree Lanteri, 'The Disabilities of Illegitimate Children in Australia: A Preliminary Analysis' (1970) 44 Australian Law Journal 5, 6. Lasok notes that until 1964, an illegitimate child born to a British woman outside British territory could not claim British citizenship and risked being stateless: Dominik Lasok, 'Family Law Reform in England' (1967) 8 William and Mary Law Review 589. 7 Dominik Lasok, 'Legitimation, Recognition and Affiliation Proceedings (A Study in Comparative Law and Legal Reform)' (1961) 10 The International and Comparative Law Quarterly 123, 133.
45 Chapter Two – Historical Context between the citizen and state and in allocating and enforcing economic responsibility for the costs of raising children. 8 Yet paternity and ‘begetting’ required more than just contributing to conception – conception needed to occur within marriage. Children born outside marriage were construed as ‘illegitimate’. This meant that ex‐nuptial children and their mothers were subject to social opprobrium, legal disabilities and economic vulnerability, and for some, forced adoptions.9 Legitimacy therefore created two distinct categories of children – ‘legitimate’ and ‘illegitimate’ – as well as two corresponding categories of fathers – legal (married) fathers and ‘natural’ or ‘putative’ fathers, each with distinct legal functions. This section explores these categories. A key mechanism enabling these divisions was the presumption of legitimacy – a presumption that the husband of a woman who gave birth was the biogenetic and legal parent of the child born. For nuptial children, the centrality of marriage to legal parentage meant that their legal parentage usually reflected the lived reality of their family life, and the stringent evidentiary protections around the presumption of legitimacy meant that, even if their legal father was not their genetic progenitor, in all but a few rare cases, their legal parentage was stable.10 This meant they were almost completely safe from the social, legal and economic disaster of being ‘bastardized’ – being retrospectively stripped of the status of legitimacy and of a legal relationship with their mother’s husband (usually, their social father) and his family.11 It was legally possible, but by no means easy, for mothers of ex‐nuptial children to claim maintenance from the ‘natural’ father of an extra‐marital child,12 however this
8 Michel Foucault, The History of Sexuality, Volume 1: An Introduction (Robert Hurley trans, 1979) 140 [trans of: Histoire de la Sexualité (first published 1979)]. 9 Senate Community Affairs References Committee, Parliament of Australia, Commonwealth Contribution to Former Forced Adoption Policies and Practices (2012). 10 Though legal parentage was disrupted in a handful of cases. See, eg, Russell v Russell [1924] AC 687. 11 Significant exceptions to this stability were children of mixed racial heritage born to white mothers. But even then, legitimacy sometimes prevailed – see Ah Chuck v Needham [1931] NZLR 559 277. For more on the racial and colonial aspect of law’s treatment of the genetic tie, see Dorothy E Roberts, 'The Genetic Tie' (1995) 62 University of Chicago Law Review 209. 12 David Hambly and J Neville Turner, Cases and Materials on Australian Family Law (Law Book Company, 1971), 509; Maintenance Act 1965 (Vic) ss 10‐11.
46 Chapter Two – Historical Context created a tenuous economic connection, rather than any legal relationship between father and child.13 Where children were born within marriage, but of misattributed paternity, it was extremely rare for courts to sever the legal tether between legal father and child, because of a reluctance to ‘bastardize’ children, manifesting in a number of evidentiary protections buffering the presumption of legitimacy. This section uses the notion of a ‘tether’ to discuss the ways law has connected fathers to children, building on Collier’s notion of fatherhood as ‘a social construct through which the law has historically sought to attach men to children’.14 A ‘tether’ conveys not only connection, but the possibility of connection across distance – allowing for a degree of physical absence from day‐to‐day care‐giving which the role of economic provider required within legal ideas of the ‘good father’.15
… the breadwinner ideal involves a physical absence from the family which has been sanctioned in law. We have also seen how it involves a man in ’providing’ for his family.16
There is a perceived need for some kind of legal ‘tether’ between fathers and children because the nature of men’s involvement in human reproduction allows for potential absence, or even ignorance of the fact that a child has resulted from a sexual encounter, in a way that pregnancy does not allow for mothers who give birth. Where birthing mothers are physically tethered to the child via the umbilical cord and by the
13 For example, in Re L [Infants] [1968] QWN 36 the Supreme Court of Queensland held that the ‘natural’ father’s consent was not required for the proposed adoption of the children by their mother’s new husband, and if that occurred, there would be no jurisdiction to order access. But if the adoption did not go ahead, he could return to the court to seek orders for access as ‘a natural father has the right to come to the Court and ask it to exercise jurisdiction over infants in such a manner as to give effect to his wishes, and the court will, in a proper case, do so’ (Campbell J). 14 Collier, above n 2, 9. 15 Collier, above n 2, 15, 20. Carol Smart also points out that, in psychoanalysis, ‘’Disconnectedness’ … arises from the process of identification with the father after having formed an initial bond with the mother, necessitating distancing. It is this distancing which is thought to give rise to impartiality, neutrality and the primacy of logic in ‘masculine’ moral reasoning’: Carol Smart, 'The Legal and Moral Ordering of Child Custody' (1991) 18 Journal of Law & Society 485, 488. 16 Collier, above n 2, 15.
47 Chapter Two – Historical Context physiological processes of pregnancy, birth, and often also breastfeeding, men may ‘father’ a child and not be aware of their existence. This physical absence at the heart of the breadwinner ideal of fatherhood means that definitions of parentage based around functional parenting relationships were unthinkable within common law because they would by definition exclude many of the men deemed most suitable as fathers within that ideal. The economic norm of fulltime paid employment outside the home had come to signal masculine and paternal success, even if it limited many men’s involvement in the day‐to‐day work of parenting. Marriage functioned well to tether legal fatherhood because it meant that legal fatherhood could be certified. The marriage certificate took the place of any inquiry into the actual relationship between father and child, neatly side‐stepping arguments about the metaphysical ‘truth’ of a father‐child relationship and whether this required genetic connection, intention to parent or functional parenting.
A Husbands (legal fathers)
Until the abolition of illegitimacy, the only way to be a legal father in Australia was to be married to the child’s mother – either at the time of the child’s birth, or by marrying the mother after the child was born.17 Legal fatherhood was relatively simple to determine because the common law presumption of legitimacy allowed judges to use one socio‐legal status (marriage) to determine another (legal parentage of any children born to the wife during the marriage).18 In this way, the presumption of parentage
17 An illegitimate child could be ‘legitimated’ by the subsequent marriage of the parents under legitimation statutes passed in all Australian colonies / states and territories between 1898 and 1909: Sackville and Lanteri, above n 6, 7. ‘Natural’ fathers could be registered as a father on the birth certificate with the consent of the mother, though this did not guarantee them all the rights of legal fathers: Registration of Births, Deaths and Marriages Act 1959 (Vic) s 25. 18 Zoe Rathus, 'Social Science or "Lego‐Science"? Presumptions, Politics, Parenting and the New Family Law' (2010) 10 Queensland University of Technology Law and Justice Journal 164, 179.
48 Chapter Two – Historical Context operated as a bridge from marriage to parentage, so that there was no need to conclusively prove genetic paternity. The legal obligations of fatherhood flowed directly from marriage. While biogenetic connection was the ‘rhetoric’ justifying legal parentage,19 there was widespread understanding that legal fathers and their children didn’t always share a bio‐ genetic bond.20 Legitimacy as the defining logic of legal fatherhood meant that not all children were lawfully connected to their genetic fathers, and some men were legal fathers of children with whom they shared no genetic link. For example, the Maintenance Act 1965 (Vic)21 clarified that the extent of a husband’s maintenance liability included not just his genetic children, but also any ‘child of the family’, defined to include ‘a child of either of the parties from a previous marriage or a child born to one of them as a result of some other union’.22 Using language that was strikingly similar to that used two decades later in the discussions surrounding introduction of the CSS, the Victorian Attorney‐General, Mr Rylah explained in the parliamentary debates surrounding the passage of the Maintenance Act 1965 that,
For the relief of stricken families, the saving of the public purse, and the honouring of marital obligations, the Standing Committee of Attorneys General has examined the whole problem and agreed to the terms of a model Bill, the effect of which should be to make enforcement of maintenance orders so effective throughout the whole of Australia as to discourage desertion as the easy way out.23
19 Fiona Kelly, 'Producing Paternity: The Role of Legal Fatherhood in Maintaining the Traditional Family' (2009) 21 Canadian Journal of Women and the Law 315, 316. 20 See for example,’[P]eople do exist as non‐biological but social children of a marriage. I know them.’ Transcript of Proceedings, Magill v Magill [2006] HCATrans 163 (7 April 2006), 10 (Gleeson CJ, Gummow J, Kirby J, Hayne J, Heydon J, Crennan J). 21 Part of a uniform statutory approach agreed by the Standing Committee of Attorneys General. Maintenance Act 1964 (NSW); Maintenance Act 1965 (Vic); The Maintenance Act 1965 (Qld); Maintenance Act 1967 (Tas); Maintenance Act 1926‐65 (SA); Married Persons and Children (Summary Relief) Act 1965‐ 7 (WA); Maintenance Ordinance 1968 (ACT). 22 Maintenance Act 1965 (Vic) s 3(1). 23 Victoria, Parliamentary Debates, Legislative Assembly, 23 March 1965, 2747 (Mr Rylah).
49 Chapter Two – Historical Context
The 1965 uniform Maintenance Acts were in many ways an earlier attempt at achieving the same ends which drove the development of the CSS (making men economically responsible for ‘their’ children), with the crucial difference that it was marriage, not genetic paternity, which was the primary determinant of liability.
B ‘Natural’ or ‘putative’ fathers
In contrast to married fathers, ‘natural’ or ‘putative’ fathers were not legal parents. In a 1914 UK neglect case, Justice Coleridge recited it neatly as, ‘[w]hen is a parent not a parent? When he is the parent of an illegitimate child’.24 Children born outside of wedlock were therefore legally fatherless, but they could be recognised as having ‘natural’ or ‘putative’ fathers for the purposes of affiliation and maintenance proceedings.25 These ‘natural’ fathers had no legal authority over their ex‐nuptial children or rights to claim custody, but could face maintenance obligations.26 The rights of ‘natural’ or ‘putative’ fathers depended somewhat upon the context. For example, in Re L, Campbell J concluded that the ‘natural’ father’s consent was not required in order for the mother’s husband to adopt the children and that, once the adoption order went through, the court would have no jurisdiction to make orders for the natural father to have access. If the adoption did not go through, however, Campbell J indicated that the natural father could return to the court to seek orders for access as ‘a natural father has the right to come to the Court and ask it to exercise jurisdiction over infants in such a manner as to give effect to his wishes, and the court will, in a proper case, do so’.27 Sometimes that context included the relational context – did the ‘natural father’ function as a husband to the mother and as a father to the children? In Nobels v Anderson in 1972, a ‘natural father’ sought custody of his two children where his de
24 Reported in the Liverpool Daily Post, 11 June 1914, 5, cited in Ginger Frost, ‘“When is a Parent Not a Parent?” Custody and Illegitmacy in England, 1860‐1930' (2013) 6 Journal of the History of Childhood and Youth 236. 25 See, eg, Maintenance Act 1965 (Vic) ss 12‐13. 26 Hambly and Turner, above n 12, 509; Sackville and Lanteri, above n 6. 27 Re L [Infants] [1968] QWN 36.
50 Chapter Two – Historical Context facto wife had been killed in a car accident and her family had taken the children after the funeral and had refused to return them to his care.28 Crockett J held that while the children were legally fatherless (and therefore made them wards of the court), it was in their best interests that they be returned to the care of their ‘natural father’. In doing so, Crockett J observed that,
… the applicant’s relationship with Miss C and the children was in all respects comparable, during its currency, with that of a normal family, and it was merely the unfortunate death of the mother which prevented the regularlisation of the union and the legitimation of the children… 29
Crockett J distinguished Mr Nobels’ situation from that of ‘the young man responsible for the pregnancy of a girl with whom he has not lived nor has any intention of doing so, still less has he any intention of marrying her’.30 Muirhead J took a similar approach in Re CN & MG in the Northern Territory Supreme Court in 1976, where a ‘putative father’ objected to the children being adopted by the ‘natural mother’ and her husband by arguing that the adoption order would ’put an end to a very real and valuable relationship which has grown up between the father and his children’.31 Muirhead J indicated that ‘putative fathers’ could validly claim custody of their biogenetic child but that there were:
limits which may be imposed where the quality of the parenthood is to a large extent biological only and lacks the important features of fatherhood as a caring and enduring relationship…32
Muirhead J anticipated that:
…the recent changes in social concepts, the distinct trend towards enduring family relationships which are not ‘legalized’ or ‘sanctified’ by marriage will accelerate
28 Nobels v Anderson [1972] VR 821. 29 Nobels v Anderson [1972] VR 821 at 827. 30 Ibid. 31 Re CN and MG (infants) (1976) 9 ALR 666 at 669. 32 Re CN and MG (infants) (1976) 9 ALR 666 at 668.
51 Chapter Two – Historical Context
recognition of the claim of putative fathers to participate in the care and control of the children.33
While Muirhead J conceded that the relevant legislation did not require consent from a ‘putative father’, he found that, in considering the putative father’s objection, it was relevant to consider ‘not only his biological relationship but the strength of his ties with his children’. 34 He therefore refused to make the adoption order as ‘the severance of the ties already secured would not be in the interests of either of the children’.35 In theory, illegitimate children in Australia had ‘the same rights of support from private sources, formally at least, as a legitimate child’, if (and it was a big if) the mother could establish paternity via affiliation proceedings.36 In practice, it was often ‘exceedingly difficult’ to prove paternity and then to enforce any maintenance order.37 Even once paternity was established, mothers often faced ‘insuperable difficulties of enforcement because of the recalcitrance or poverty of the father’.38 Sackville and Lanteri also acknowledged that mothers may have had good reasons for not wanting to identify their child’s father or connect their child with him:
Alternatively there may be other reasons militating against enforcement of the father’s obligations, notably the unwillingness of the mother to recount the intimate and often distressing details of the relationship that led to the birth of the child. This unwillingness may in turn stem from her deeply felt need to sever all contact with the father.39
33 Ibid. 34 Ibid. 35 Ibid, at 669. 36 Sackville and Lantieri, above n 6, 12. In the UK, only ‘single women’ were eligible to claim affiliation and maintenance – married women were ineligible to claim maintenance against anyone except their husband: Lasok, 'Legitimation, Recognition and Affiliation Proceedings (A Study in Comparative Law and Legal Reform)', above n 7, 141. 37 Sackville and Lanteri, above n 6,12, 53. See also Swain and Howe, Single Mothers and their Children: Disposal, Punishment and Survival in Australia (CUP, Oakleigh 1995), 166. 38 Sackville and Lantieri, above n 6, 13. 39 Sackville and Lantieri, above n 6, 13.
52 Chapter Two – Historical Context
In order to prove paternity, the mother’s evidence alone was insufficient – corroboration was required.40 In many states, if another man testified that he had also had intercourse with the mother during the relevant time, her affiliation application was dismissed.41 Similarly, if a child born to a married woman was conceived after the date of a decree of separation, the child was presumed to be ‘illegitimate’ – the wife can ‘rebut that presumption, if she can, but she must do it by evidence other than her own’.42 Men held to be ‘Natural’ fathers therefore had some economic liability (if the mother could establish affiliation and enforce a maintenance order), but without any attendant legal status as father nor the rights that flowed from that status.43 Nobels v Anderson and Re CN & MG indicate some softening of that approach, however, where a ‘natural’ unmarried father had lived in a marriage‐like relationship with the mother so that his role towards the children was seen as akin to ‘a normal family’.44 Nonetheless, apart from gaining the benefit of maintenance (if it was paid – this was a key problem) children of unmarried mothers did not gain a formal legal relationship with the ‘Natural’ father or his kin. Indeed, in the mid 1960s, as adoption climbed towards its peak as the state’s preferred ‘solution’ to ex‐nuptial pregnancy, each of the Australian states and territories updated their adoption statute to remove completely any requirement for a
40 Sackville and Lantieri, above n 6, 53; Hambly and Turner, above n 12, 512. 41 Sackville and Lantieri, above n 6, 55; Maintenance Act 1965 (Vic) s 27(2); Maintenance Act of 1965 (Qld) s 30(b); Maintenance Act 1967 (Tas) s 35 (3). 42 John Litherland, The Law Relating to Maintenance of Wives and Children Who Are Deserted or Left Without Means of Support (Law Book Co, 1949) 221. 43 For example, Eekelaar notes that the ‘Poor Law Amendment Act of 1844 allowed an unmarried mother to seek an order against the father for the support of herself and her child’: John Eekelaar, ‘The End of an Era?’ (2003) 28 Journal of Family History 108, 111. 44 Nobels v Anderson [1972] VR 821 at 827. Re CN and MG (infants) (1976) 9 ALR 666 at 669.
53 Chapter Two – Historical Context
‘natural’ father to consent to adoption of an illegitimate child.45 One Western Australian MP said of the ‘natural’ father:
If this Bill is adopted, he will not figure in the picture at all. He will not have to consent. I think that is a good thing because, in any case, his interests and rights in the child are practically nil.46
The bright‐line rule that secured legal parentage for children of married mothers came at a significant cost for women who reproduced outside the norms of marriage and their children. Illegitimate children had ‘no rights as to maintenance or succession and with no provision for the resolution of custody disputes save wardship’,47 as well as carrying significant social opprobrium. Legal scholars such as Lasok and Sackville and Lanteri argued that affiliation and enforcement mechanisms must be improved, drawing on twin justifications – the interests of the child and the ‘responsibility of progenitors’:
A reform is necessary for humanitarian and practical reasons – the interests of the child born out of wedlock must be adequately protected and the responsibility of his progenitors firmly anchored in law.48
Concern for the ‘responsibility of progenitors’ was understood primarily in an economic sense. At a time when (and in a culture where) motherhood created economic dependence for the woman and child, if fathers did not pay, it was the Poor law parish, and later, the welfare State, who were responsible. Yet, even where pursuing private
45 Adoption of Children Act 1965‐1966 (NSW) s 26(3); Adoption of Children Act 1964 (Vic) s 23(3); The Adoption of Children Acts 1964‐7 (Qld) s 19(3); Adoption of Children Act 1966‐7 (SA) s 21(3); Adoption of Children Act 1896‐ 1964 (WA) s 4A; Adoption of Children Act 1968 (Tas) s 21(3); Adoption of Children Ordinance 1965 (ACT) s 24(3). 46 Western Australia, Parliamentary Debates, Legislative Council, 12 November 1964, 2528 (E M Heenan). 47 H A Finlay and A Bissett‐Johnson, Family Law in Australia (Butterworths, 1972), 257. But note, illegitimate children (or their mothers) could claim maintenance against their ‘natural’ father if first they were able to succeed in affiliation proceedings, eg under the Maintenance Act 1965 (Vic). 48 Lasok, 'Legitimation, Recognition and Affiliation Proceedings (A Study in Comparative Law and Legal Reform)', above n 7, 142. See also Sackville and Lanteri, above n 6, 63.
54 Chapter Two – Historical Context support was ineffective or uneconomic, scholars such as Lasok and Sackville and Lanteri suggested that holding natural fathers responsible was a normative end in itself:
If the sole aim of such proceedings [for affiliation and maintenance] is to provide maintenance for the child and consequently to relieve the mother from the whole burden of support, it may be thought that unless their effectiveness can be improved dramatically, the proper solution is to abandon the notion of private support altogether in favour of State support. On the other hand, it may be argued that, even if proceedings for private support are inefficient as maintenance devices, they ensure that ‘the father of an illegitimate child [cannot] shirk the responsibilities involved in procreation’.49
While unmarried mothers were at least legal mothers of their ex‐nuptial children,50 this status was often ignored in hospital policies encouraging (and sometimes forcing) unwed mothers to relinquish their babies for adoption.51 Combined with very limited welfare support for unmarried mothers until the introduction of the Commonwealth sole parent’s pension in 1973, many women giving birth outside marriage during this time felt that they had no way to support a child, and no choice but to relinquish their children for adoption, with all the human costs that involved.52 Using
49 Sackville and Lanteri, above n 6, 51, citing Lasok, ‘Legitimation, Recognition and Affiliation Proceedings’ (1961) 10 International and Comparative Law Quarterly 123, 134. 50 Ginger Frost, '‘When is a Parent Not a Parent?' Custody and Illegitimacy in England, 1860‐1930' (2013) 6 Journal of the History of Childhood and Youth 236, 358. 51 Senate Community Affairs References Committee, Parliament of Australia, Commonwealth Contribution to Former Forced Adoption Policies and Practices (2012). 52 In 1970, Sackville and Lanteri reported that social workers at the Royal Women's Hospital, Melbourne estimated that approximately 60 per cent of the illegitimate children born in the hospital were relinquished for adoption. At that time, restrictions on state welfare for illegitimate children meant that unmarried mothers wishing to keep their children would encounter ‘almost overwhelming obstacles if she is dependent upon welfare’. This meant that ‘a great number of unmarried mothers are forced against their will to give up their children for adoption simply because they lack the resources to keep them’: Sackville and Lanteri, above n 6, 58, 10. It was not until 1973 that the Supporting Mother’s Benefit was introduced, and even then, eligibility did not start until six months after the date of separation or birth of a child: Dale Daniels, 'Social Security Payments for People Caring for Children, 1912‐2008: A Chronology' (Social Policy Section, Parliamentary Library, Parliament of Australia, 2009). Prior to that, Commonwealth assistance was restricted to widows (though this sometimes included de facto widows, deserted wives, and women separated from imprisoned husbands). A patchwork of inconsistent assistance programs at a
55 Chapter Two – Historical Context marriage as the bright line rule also meant that women’s fidelity within marriage was treated very differently to men’s fidelity – creating double standards in the grounds for divorce.53
C Bastardisation, legitimation and adoption
The notion of legitimacy therefore created two categories of children – legitimate children born within marriage, and illegitimate children born outside of marriage – and therefore two fatherhoods – legal and ‘natural’. When illegitimacy as a status was challenged in the late 1960s and early 1970s, much of the objections concerned the differential treatment meted out to children based on the arbitrary question of whether their genetic parents were married or not. Yet these categories were not entirely static. To understand law’s response to doubts regarding paternity prior to the abolition of illegitimacy, and to trace how genetic paternity came to be so fundamental to legal parentage after it was abolished, requires some discussion of these mechanisms for children to cross the boundary between ‘illegitimate’ and ‘legitimate’. By the late 1960s, then, there were three clear ways in which children could cross this boundary. First, if the presumption of legitimacy was rebutted, then a child could be stripped of legitimate status and of any relationship with the mother’s husband and his
State or Territory level also applied. Before 1968 the Victorian and Queensland rates of support for single mothers were described as so meagre as to be ‘scandalous’, and after 1968, they were so complex and discretionary that Ronald Sackville wrote in 1973 that it was ‘extremely difficult, if not impossible to ascertain the entitlement of any applicant to state assistance’: Ronald Sackville, 'Social Welfare for Fatherless Families in Australia: Some Legal Issues' (1973) 47 Australian Law Journal 5, 12. For a discussion of the severe long‐term impacts of relinquishment — particularly regarding mental health, see Janette Logan, 'Birth Mothers and their Mental Health: Uncharted Territory' (1996) 26 British Journal of Social Work 609. 53 For example, men only needed to establish one instance of a wife’s adultery in order to petition for divorce, whereas women had to prove ‘aggravated and repeated’ instances of a husband’s adultery: Henry Finlay, To Have But Not To Hold: A History of Attitudes to Marriage and Divorce in Australia 1858‐1975 (Federation Press, 2005) 71. See also Margaret Harrison, 'Book Review: To Have But Not To Hold. A History of Attitudes to Marriage and Divorce in Australia 1858‐1975 by Henry Finlay' (2006) 30 Melbourne University Law Review 594, 595.
56 Chapter Two – Historical Context family in a process known as ‘bastardisation’. 54 Second, from around the turn of the twentieth century, legislation was introduced enabling children born outside of wedlock to be ‘legitimated’ if the parents subsequently married.55 Finally, adoption also worked to legitimate children by transferring illegitimate children into a legitimate family – either by being adopted by the mother’s new husband, or by being relinquished by the unmarried mother and adopted by a married couple. Adoption legislation legitimised the child because it altered the child’s legal parentage to make it ‘as if the child had been born to the adopter or adopters in lawful wedlock’.56 What is important to note about these transition mechanisms is that the very language acknowledged a change in legal status – a child was ‘bastardised’ rather than being discovered to have always been a bastard, or a child was legitimated rather than discovered to have been legitimate all along.
D Evidentiary Protections surrounding the Presumption of Legitimacy
The serious consequences for a child of bastardization justified a number of evidentiary rules which operated to bolster the common law presumption that a wife’s husband was the legal father of her child, otherwise known as the presumption of legitimacy.57 This presumption placed the burden of proof on whichever party sought to claim the child was ‘illegitimate’. These rules governed the circumstances in which the presumption could be rebutted, the standard of proof, and who was able to give evidence rebutting the presumption. A fourth evidentiary hurdle – the lack of clarity around the admissibility of blood type testing evidence – did not form part of the presumption of legitimacy but nontheless bolstered it. Thanks to these evidentiary rules, the presumption of legitimacy was a heavy burden to rebut, and it was very rare for it to be rebutted. Litherland noted that the evidence required to rebut it ‘must be
54 Russell v Russell [1924] AC 687; Alex Smith, 'The History of the Rule in Russell v. Russell' (1940‐1942) 4 Alberta Law Quarterly 167, 167. 55 See, eg, Registration of Births Deaths and Marriages Act 1903 (Vic) s 2. 56 Adoption of Children Act 1964 (Vic) s 32. 57 Litherland, above n 42, 316. Though Mary Louise Fellowes has critiqued this claim that the presumption of legitimacy and its evidentiary protections ‘reflected concern for the welfare of the child’: Mary Louise Fellows, 'A Feminist Interpretation of the Law of Legitimacy' (1998) 7 Texas Journal of Women & the Law 195, 195, 201.
57 Chapter Two – Historical Context strong, distinct, satisfactory and conclusive’.58 This section outlines each of these evidentiary rules and their relationship with a child’s genetic paternity. Historically, the presumption of legitimacy could only be rebutted by evidence that the husband was ‘beyond the four seas’ for the whole period of conception,59 though by 1821, this had been supplanted by the ‘modern’ rule that other evidence of non‐access or impotence could potentially ‘exclude all doubt, that the husband is the father’.60 Litherland’s 1949 text articulated a limited set of situations in which the presumption could be rebutted: where the husband was proved to be impotent, absent from his wife generally, or absent during the likely period of conception, only in her company on occasions when it could be proved intercourse had not occurred or where the child had been conceived after the spouses had obtained a valid court order to live apart.61 Similarly, in the Banbury Peerage Case, the Court of Common Pleas held unanimously
That in every case where a child is born in lawful wedlock, the husband not being separated from his wife by a sentence of divorce, sexual intercourse is presumed to have taken place between the husband and wife, until that presumption is encountered by such evidence as proves, to the satisfaction of those who are to decide the question, that such sexual intercourse did not take place at any time, when, by such intercourse, the husband could, according to the laws of nature, be the father of such child.62
The focus, therefore, was on disproving the possibility of any sexual connection between husband and wife, rather than to attempting to disprove any genetic connection between father and child. Evidence of the wife’s adultery was insufficient, if there was no evidence of the husband’s non‐access or impotence during the relevant time. 63 Litherland, for example, remarks that a wife’s confession ‘that a child whom
58 Litherland, above n 42, 221. 59 Head v Head (1823) 1 Sim & St 150 at 152 (Leach VC). 60 Law Commission (UK), Blood Tests and the Proof of Paternity in Civil Proceedings, Report No 16 (1968) at 151‐2 (Leach VC). See also Finlay and Bissett‐Johnson, above n 47, 248‐250. 61 Litherland, above n 42, 220. 62 Banbury Peerage Case (1811) 1 Sim & St 152‐158. 63 Litherland, above n 42, 219.
58 Chapter Two – Historical Context she has borne is not her husband’s’ is evidence ‘only of her adultery’ and does not amount to evidence ‘that the child, in fact, is not the child of her husband’.64 Where the husband had access to the wife at the relevant time, but claimed the child was illegitimate on the basis of physical appearance, this was insufficient to rebut the presumption of legitimacy. In Ah Chuck v Needham, a New Zealand case, a married woman had been divorced by her husband on grounds of infidelity, so she sought maintenance against Ah Chuck, a neighbour described as ‘a Mongolian’, with whom she stated she had had intercourse on one occasion, resulting in the birth of her child. Herdman J rejected this claim on the basis that the child was presumed to be legitimate.
No proof of any kind was given that the husband did not have intercourse with his wife at the period of conception, so even if it had been proved that the woman had committed adultery with the other man, the husband must be deemed to be the father of the child.65
As for the child’s appearance, Herdman J remarked, ‘[t]here is no accounting for the vagaries of nature’.66 Whether the outcome would have been the same had it been the husband seeking to rebut the presumption of legitimacy (and therefore to bastardise the child) on the basis of racial difference, it is difficult to know. Once the husband had divorced his wife on the grounds of adultery, it was very unlikely he would be held to a maintenance obligation.67 When, several decades later, the presumption of legitimacy and the evidentiary rules were being dismantled, unspoken concerns about racial purity in an era of increasing racial integration appeared to play some role. Both the cases cited as ‘unjust’ when the House of Lords revisited the presumption of legitimacy in 1970
64 Ibid 317. 65 Ah Chuck v Needham [1931] NZLR 559 277, [191]. 66 Ibid. 67 Orders for husbands to maintenance where the wife had committed adultery were not completely unknown, however, with some judges making a ‘compassionate allowance’: D M Selby, 'All His Faults Observ'd' (1973) 47 Australian Law Journal 421, 425.
59 Chapter Two – Historical Context involved white husbands challenging the parentage of their white wives’ biracial children.68 Second, the standard of proof traditionally required to prove adultery in order to ‘bastardize a child’ was the criminal standard of proof beyond reasonable doubt, rather than the ordinary civil standard of proof on the balance of probabilities.69 For example, in Piggott v Piggott, Dixon J held that the husband was bound to ‘adduce evidence which produces a clear and satisfactory inference contrary to the primary presumption. It will not be sufficient unless it produces a moral or judicial conviction, so that the tribunal is satisfied beyond reasonable doubt’.70 In Preston‐Jones v Preston‐ Jones, Lord Oaksey explained that heavy burden of proving illegitimacy was founded ‘upon the interest of the child and the interest of the State in matters of legitimacy, since the decision involves not only the wife’s chastity and status but in effect the legitimacy of her child’.71 Thirdly, until 1959 the common law rule known as Lord Mansfield’s rule barred both parties to the marriage from giving evidence to delegitimize a child.72 From the 1940s onwards, the rule was criticised across the common law countries, with scholars such as Planert arguing that:
the fact that the rule is based on a foundation that is unsound and leads to the suppression of the truth and the defeat of justice takes from it the customary traditional and precedential justification urging its adoption.73
Finally, while blood type evidence had been held admissible in parentage proceedings relating to an alleged baby‐swap case,74 and to rebut putative paternity in
68 S v McC and M [1970] 3 AC 107, 25 (House of Lords). 69 Briginshaw v Briginshaw (1938) 60 CLR, at p 367 (Dixon J); Piggott v Piggott (1938) 61 CLR, at p 415. 70 Piggott v Piggott (1938) 61 CLR, at p 415. 71 See, eg, Preston‐Jones v Preston Jones [1951] 2 All ER 540 AC at 409; Finlay and Bissett‐Johnson, above n 47, 248. 72 Russell v Russell [1924] AC 687 at 697–700 (The Earl of Birkenhead), 706–16 (Viscount Finlay). Applied in Australia in Ex parte Ridley; Re Totterdell and anor (1946) 47 SR (NSW) 173 and in Piggott v Piggott (1938) 61 CLR. 73 Lloyd J Planert, 'Proof of Illegitimacy in Paternity Proceedings' (1941 ) 25 Marquette Law Review 148, 154. 74 R Jenkins; Ex parte Morrison [1949] VLR 277.
60 Chapter Two – Historical Context affiliation cases,75 it was unclear whether the courts had jurisdiction to order the parties to submit to blood type testing.76 These evidentiary restrictions meant that, for over half of the twentieth century, the presumption of parentage was, in Kaebnick’s words, ‘all but irrebuttable’.77 Presumptions were used to favour ‘stability over accuracy in attribution of paternity’.78 While unmarried fathers were at times acknowledged as ‘natural fathers’, and could be the subject of affiliation proceedings for maintenance of children, they were not legal fathers, and had no parental rights regarding the child (except in a small number of cases like Nobels v Anderson where despite being unmarried, they resembled a ‘normal family’).79 Marriage therefore effectively functioned as the determinant of legal parentage. This concern to avoid ‘bastardizing’ children was a tacit acknowledgement that, despite the ‘rhetoric of biology’, legal married fathers were not always genetic fathers. Like the husband in Ah Chuck v Needham, if they were concerned by their wife’s faithlessness, they could divorce or desert her.80 At common law and under the various
75 See, eg, the note in the ‘Current Issues’ section of the Australian Law Journal noting that at the Tamworth (N.S.W.) Quarter Sessions ‘a magistrate's order for the maintenance by the appellant of an illegitimate child was quashed after evidence had been given by a doctor that he had tested the blood of the mother, the appellant, and the child and that the tests revealed that the appellant could not possibly be the father of the child.’: 'Current Topics: Blood Tests in Affiliation Cases' (1935) 9 Australian Law Journal 129, 131. 76 Sackville and Lanteri, above n 6, 54. 77 Gregory Kaebnick, 'The Natural Father: Genetic Paternity Testing, Marriage, and Fatherhood' (2004) 13 Cambridge Quarterly of Healthcare Ethics 49, 54. See also Janet L Dolgin, ‘Choice, tradition, and the new genetics: the fragmentation of the ideology of family’ (2000) 32 Connecticut Law Review 523, 529. 78 Mary Anderlik and Mark Rothstein, 'DNA‐Based Identity Testing and the Future of the Family: A Research Agenda' (2002) 28 American Journal of Law & Medicine 215, 222. 79 Nobels v Anderson [1972] 821 VR, 827. Even after the official abolition of illegitimacy by the Status of Children Act 1974 (Vic) a number of cases held that unmarried fathers were not ‘guardians’ of their children and as such their consent or otherwise was irrelevant to the adoption of the child: Re AC (Unreported, Supreme Court of Victoria, Jenkinson J, 23 April 1976); W v H [1978] VR 1. In Douglas v Longano (1981) 34 ALR 371 the High Court confirmed that the Status of Children Act 1974 (Vic) had indeed enabled courts to make orders regarding custody or control of a child on the application of an ex‐nuptial father. Henry Finlay, Family Law in Australia (Butterworths, 3rd ed, 1983), 370. 80 Ah Chuck v Needham [1931] NZLR 559 277.
61 Chapter Two – Historical Context
Maintenance statutes, ‘a husband was not bound to support an adulterous wife’.81 Yet the presumption of legitimacy could still prevent the mother from establishing an affiliation order against the genetic father – putting her and the child in a precarious situation. In some cases, the presumption of legitimacy operated in favour of infertile men who wanted a child and heir. Where a man suspected his wife had been unfaithful or that he was not the biological father of his wife’s child, he could choose whether to stay quiet or to divorce his wife for infidelity. In all but the most exceptional cases, the child’s legal parentage remained secure (though their wellbeing often ebbed and flowed with the economic position of the mother). Illegitimacy therefore acted as a cautionary tale of what happened to women who did not submit to marriage (and their unfortunate children). As adoption became a socially acceptable way of creating a family in the twentieth century, illegitimate children also functioned as a resource that could be re‐allocated to infertile married couples, in the process becoming ‘legitimate’ and being relieved of the legal disabilities of their illegitimate birth. Sackville and Lantieri, writing around the peak of Australia’s infant adoption rates remarked:
In one sense the ‘problem’ of illegitimacy actually overcomes another, perhaps more significant problem. Many illegitimate children are adopted shortly after birth thus permitting child‐less couples to complete their families in a socially approved manner.82
As the deterrent effects of bastardy were mediated by the development of the welfare state and by growing social acceptance of birth outside of marriage, the
81 Litherland, above n 42, 303. Maintenance statutes in NSW, SA and WA codified this rule: Deserted Wives and Children Act 1901‐1939 (NSW) s 7(4), 21(6); Maintenance Act 1926‐1946 (SA) s 7; Married Women’s Protection Act 1922‐6 (WA) s 7. 82 Sackville and Lantieri, above n 6, 9. The number of adoptions in Australia peaked in 1971‐72, when 9,798 adoptions were recorded. Four years later this number had halved (4,990 in 1975‐76), by 1979‐80 it had dropped to one third (3,337) and by 1995‐96 there were only 668 adoptions recorded in Australia: Australian Bureau of Statistics, Australian Social Trends (1998)., 33. For contrast, the most recent adoption figures report just 315 adoptions within Australia for 2016‐17, with only 42 of them being local adoptions of children that were not previously known to the adoptive parents (eg adoption by step‐parents, other relatives and carers): Australian Institute of Health and Welfare, Adoptions Australia 2016‐17 (Australian Institute of Health and Welfare, 2017).
62 Chapter Two – Historical Context effectiveness of marriage to regulate women’s sexuality and reproduction declined. Other strategies emerged – including the state’s interest in connecting all children with a legal father in order to shift economic responsibility for children from public to private actors.
II CHALLENGING ILLEGITIMACY
As de facto relationships and ex‐marital births became more common through the late 1960s and early 1970s, legal scholars challenged the unequal treatment of illegitimate children,83 and the social opprobrium that accompanied it, leading to the abolition of illegitimacy in most of the states and territories between 1974 and 1978.84 Well before illegitimacy as a legal status was abolished, however, courts and legislatures in the UK and Australia began dismantling some of the evidentiary protections around the presumption of legitimacy in favour of resorting to blood type evidence of genetic paternity. This part examines the process of dismantling the evidentiary protections, policy challenges to illegitimacy, and the law reform process which led to its abolition. In particular, it examines how those advocating reform drew on rhetoric of ‘truth’, ‘justice’ and ‘biology’, and how these advocates balanced issues of justice towards putative fathers with justice towards children.
A Dismantling of evidentiary protections of presumption of legitimacy
The evidentiary protections which surrounded the presumption of legitimacy and which made it very difficult to bastardise a child on the basis of doubts whether the child was the genetic progeny of the husband were dismantled in a piecemeal fashion. In 1953, in Watts v Watts, the Australian High Court overturned the requirement for adultery to be proved beyond reasonable doubt in order to dissolve a marriage.85
83 Sackville and Lantieri, above n 6; Swain and Howe, above n 37, 197‐208; Hambly and Turner, above n 12, 530 remarked on the ‘slow response of the law to changes in social values’. 84 Status of Children Act 1974 (Tas), Status of Children Act 1974 (Vic), Family Relationships Act 1975 (SA), Children (Equality of Status) 1976 (NSW), Status of Children Act 1978 (Qld), Status of Children Act 1978 (NT), with the ACT trailing a decade later with the Birth (Equality of Status) Act 1988 (ACT). Western Australia achieved the same effect by amending each separate piece of relevant legislation – eg Administration Act 1903 (WA), s 47A; Inheritance (Family and Dependants Provision) Act 1972 (WA), etc. 85 Watts v Watts [1953] HCA 18 (27 April 1953).
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Nonetheless, the Court held that, in cases where a finding that adultery had taken place would inevitably operate to bastardize a child, ‘a very high degree of proof is required’.86 This view persisted until 1965, when in Rejfek v McElroy, the High Court confirmed that this exception was ‘no longer necessary in Australia having regard to s 96 of the Matrimonial Causes Act 1959 (Cth)’, which specified that the standard of proof for anything to be proved relating to the Act was the ‘reasonable satisfaction of the court’.87 In the UK, the 1969 Family Law Reform Act clarified that the standard of proof for rebutting the presumption of legitimacy was the balance of probabilities rather than beyond reasonable doubt.88 The bar on evidence ‘by either a husband or a wife of non‐ access at the time a child was conceived’ was abrogated in Australia by Section 98 of the Matrimonial Causes Act 1959 (Cth).89 Advocates of these shifts justified them in terms of the waning stigma attaching to illegitimacy,90 the interests of the child,91 the injustice to cuckolded husbands,92 and law’s obligation to use ‘scientific advances’ which ‘give us fresh means of ascertaining
86 Ibid, [4] (Kitto and Taylor JJ). 87 Rejfek v McElroy (1965) 112 CLR 517, 522 (Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ). Though, even in 1976, Neave was querying whether this finding might have been limited to adultery and whether ‘the presumption of legitimacy can only be rebutted by evidence beyond a reasonable doubt, after the Family Law Act 1975 (Cth) comes into operation?’ Discussed in Marcia Neave, 'The Position of Ex‐Nuptial Children in Victoria' (1976) 10 Melbourne University Law Review 330. 88 Family Law Reform Act 1969 (UK) s 26. 89 Litherland, above n 42, 218, 316. Though this rule was abolished earlier in WA and SA: Matrimonial Causes Act 1926‐36 (SA) s 40; Matrimonial Causes and Personal Status Code 1948 (WA) s 33. See discussion in Magill v Magill (2006) 226 CLR 551 at [108] (Gummow, Kirby and Crennan JJ). 90 ‘In former times bastardy was a source of reproach and ridicule and the strength of the presumption of legitimacy was a reflection of this attitude. Furthermore, the financial prospects of an illegitimate child could be bleak. Today’s society’s views on illegitimacy have moderated and the child is not placed under such grave material disadvantages; for example, supplementary benefits are now payable to the mother as of right’: Law Commission (UK), Blood Tests and the Proof of Paternity in Civil Proceedings, Report No 16 (1968) 6. Cross also suggests that in the past ‘the stigma of bastardy was much greater than it is now’: Rupert Cross, ‘Blood Tests and Bastardy’ The Listener (London) 6 October 1966, 493, 493. See also D E Fisher, 'Serological Evidence and the Question of Paternity' (1968‐1969) 14 University of Queensland Law Journal 14, 28. 91 ‘On balance, it would be better for the child if it was firmly established who his father was than to leave this in doubt, even if leaving it in doubt secured for him the legal status of legitimacy’: Law Commission (UK), Blood Tests and the Proof of Paternity in Civil Proceedings, Report No 16 (1968) 6. 92 Cross, above n 90, 493.
64 Chapter Two – Historical Context
[the truth]’.93 In Holmes v Holmes, a UK case on the admissibility of blood test evidence for determining paternity, Ormrod J remarked:
[H]ad difficulties been put in the way of the child’s blood being taken, it is manifest on the facts of this case that a grave injustice might have been done. It would have been virtually impossible upon the evidence, I think, for this man to establish that he was not prima facie, the father of this child. ... I know it is a sad thing to bastardize a child, but there are graver wrongs.... I think there is nothing more shocking than that injustice should be done on the basis of a legal presumption when justice can be done on the basis of fact.94
In another UK case, Watson v Watson, Mr Justice Barnard ordered Mr Watson to pay maintenance in respect of his wife’s child as he had admitted intercourse at the relevant time, though with contraception.95 The wife had refused to consent to blood type paternity testing. Barnard J concluded that the child was probably ‘not the husband’s but that he was constrained by the presumption of legitimacy to decide in favour of the wife’.96 Rupert Cross, Vinerian professor of law at Oxford, gave the Watson case as an example of the injustice to husbands created by the requirement that the
93 Re L [1968] 1 All ER 20, 1025. 94 Holmes v Holmes [1966] 1 WLR 187, 188. 95 Watson v Watson [1954] P 48. 96 Cited in Law Commission (UK), Blood Tests and the Proof of Paternity in Civil Proceedings, Report No 16, [11].
65 Chapter Two – Historical Context presumption of legitimacy be rebutted beyond reasonable doubt.97 Cross, in a broadcast on the BBC in September 1966 and published in The Listener, argued that:
… more injustice is likely to be done by obliging husbands to maintain children who are probably not theirs than by refusing maintenance to a child from a man who, although he is probably not the child’s father, quite possibly may be.98
Two years later, Lord Denning followed this logic, finding in Re L (an infant) that the standard of proof for rebutting the presumption of legitimacy was the balance of probabilities, not beyond reasonable doubt, though he was in dissent.99
[I]t is clearly in the child’s interest to have a blood test, since it will settle definitely which of the men is the father… The object of the court is always to find out the truth. When scientific advances give us fresh means of ascertaining it we should not hesitate to use such means whenever the occasion requires.100
In a separate case, also by the name Re L (an infant), Ormrod J suggested that blood test evidence was capable of revealing an essential truth about families which was unknown even to the family members themselves, and that this made any concerns about bastardisation and the effect on the child irrelevant. Ormrod J argued that ‘it is a misuse of language to speak of ‘bastardising’ this child, and the real issue to be determined is to which family she belongs.101 Given that Ormrod J was speaking before illegitimacy had been abolished in the UK, it seems that he understood ‘family’ to mean a family consisting of children and both of their genetic parents, irrespective of whether they were social or legal parents.102 What is less visible in Cross and Ormrod J’s attempts to quantify injustice is the qualitative element – who bears the brunt of that injustice (husband or child) ‐ and its effect on their life. These accounts stopped short of comparing the injustice of paying
97 Rupert Cross, ‘Blood tests and bastardy’ The Listener (London) 6 October 1966, 493. 98 Ibid. 99 Re L [1968] 1 All ER 20.. 100 BRB v JB [1968] 2 AW ER1023 (Denning J). 101 [1967] 2 All ER 1110 at 1123. 102 Illegitimacy was abolished in the UK by the Family Law Reform Act 1969 (UK). Until it came into effect, as in Australia, a genetic father who was not married to the child’s mother could not be a legal father unless he adopted the child or married the mother.
66 Chapter Two – Historical Context maintenance for a non‐genetic child with the social, economic and legal effects for a child of bastardisation and severance of a legal relationship with the father and his side of the family. Cross also suggested that the presumption of legitimacy was an historical relic from times ‘when the stigma of bastardy was much greater than it is now’.103 In Australia, Doug Fisher suggested that concern about bastardisation
…may be symptomatic of a strong puritanical history, but it is one which certainly is of much less consequence today for at least two reasons: the declining legal disabilities adhering to an illegitimate child, and a changing social attitude.104
In 1968 the UK Law Commission reported to the House of Commons on ‘Blood Tests and the Proof of Paternity in Civil Proceedings’ (‘The Commission’).105 The Commission’s central recommendation was that the ‘courts should have the power to order compulsory blood tests in certain circumstances’.106 While its focus was on civil proceedings, the Commission nonetheless treated paternity in the nature of a criminal accusation against men, referring to ‘a man wrongly accused of paternity’ and to the ‘injustice of making husbands maintain children who are probably not their own’.107 Here, the Commission framed legal parentage in two key ways which were to become very familiar in the subsequent judicial and political discourse – illegitimacy as stigma, and knowledge of genetic ‘truth’ (and by implication, aligning legal parentage with that truth) as being in the child’s best interests. The Commission addressed the common law presumption of legitimacy and its basis in the court’s reluctance to ‘bastardize a child who would otherwise be legitimate’,108 concluding:
Despite these changes in public and legal attitudes towards illegitimacy, the courts naturally still regard it as a very serious matter to make a decree which has the effect of bastardizing a child. However, we suggest that in most cases, it is in a child’s best interests to know, if possible, the true position as to paternity. … It can
103 Holmes v Holmes [1966] 1 WLR 187, 493. 104 Fisher, above n 90, 28. 105 Law Commission (UK), Blood Tests and the Proof of Paternity in Civil Proceedings, Report No 16. 106 Ibid 1. 107 Ibid 2, 7. 108 Ibid 7.
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be strongly argued that on balance it would be better for the child if it was firmly established who his father was rather than to leave this in doubt, even if leaving it in doubt secured for him the legal status of legitimacy.109
B Illegitimacy as stigma
First, the Commission framed the problem with bastardisation as primarily stemming from the public and legal stigma which accompanied illegitimacy as a status, and did not address other effects of bastardisation, such as the child’s loss of legal kinship and legal identity. In the context of international human rights discourse, the legal disabilities of illegitimate children had been raised in the former Child Welfare Committee during its 1927 session by the Women's Committee of the International Federation of Trade Unions Amsterdam.110 In 1956, illegitimacy was abolished in Arizona, and in 1963 in Oregon.111 With the rise of human rights discourses in the wake of World War Two, status as an ex‐nuptial child was reframed as an attribute of discrimination.112 In 1962 a United Nations Sub‐Commission recommended that illegitimate persons should be granted equal legal and social status to that of legitimate persons.113 By the late 1960s, there was serious debate within many common law jurisdictions about the discriminatory nature of illegitimacy and its legal disabilities.114 Within the
109 Ibid 7. 110 Vieno Voitto Saario, Study of Discrimination Against Persons Born Out of Wedlock: Draft Report, UN ESCOR UN Doc E.68.XIV.3 1967 United Nations Economic and Social Council, Sub‐commission on Prevention of Discrimination and Protection of Minorities, 208. 111 Sackville and Lanteri, above n 6, 63. 112 Harry D Krause, 'Equal Protection for the Illegitimate' (1967) 65 Michigan Law Review 477. 113 Great Britain, Parliamentary Debates, House of Lords, 22 February 1967, 709 (Dr Edith Summerskill). 114 Lasok, 'Legitimation, Recognition and Affiliation Proceedings (A Study in Comparative Law and Legal Reform)', above n 49; Note, 'Compensation for the Harmful Effects of Illegitimacy' (1966) 66(1) Columbia Law Review 127; O M Stone, 'Report of the Committee on the Law of Succession in Relation to Illegitimate Persons' (1967) 30 Modern Law Review 552.; Lasok, 'Family Law Reform in England', above n 6; Great Britain, Parliamentary Debates, House of Lords, 22 February 1967 (Dr Edith Summerskill) ; Harry D Krause, 'Bastards Abroad ‐ Foreign Approaches to Illegitimacy' (1966 ‐ 1967) 15 American Journal of Comparative Law 726; Dominik Lasok, 'The Legal Status of the Putative Father' (1968) 17 International and Comparative Law Quarterly 634; Sackville and Lanteri, above n 6; Ronald Sackville, 'Social Welfare for Fatherless Families in Australia: Some Legal Issues' (1972 ) 46 Australian Law Journal 607; Ronald Sackville, 'Affiliation Proceedings in Victoria' (1972) 8 Melbourne University Law Review 351; Status of Children Act 1969 (New
68 Chapter Two – Historical Context working group responsible for drafting the Convention on the Rights of the Child there was ‘strong support of a government proposal concerning the rights of illegitimate children’, however not strong enough to attract a consensus.115 Some of the informal descriptions of the four principles underlying the CRC, refer to ‘birth status’ within the principle of non‐discrimination.116 Those arguing for the abolition of illegitimacy picked up on the language of discrimination to cast illegitimacy as a barrier to the legal equality of all people.117 A key impetus in the abolition of illegitimacy was concern for equal legal treatment of children born out of wedlock. For example, in a 1967 article on the report of the Russell Committee on the Law of Succession in Relation to Illegitimate Persons’ to the British Parliament, O M Stone remarked that ‘[t]he lawyers’ insistence that the extra‐marital child is no ‘child’ comes very close to insisting that he is not a ‘real’ person, or is a person of an inferior order’.118 Here it is worth noting some slippage between the two main meanings of the word ‘legitimate’. The first definition, ‘conforming to the law or to rules’ works more to describe something as conforming to law.119 In contrast, the second main definition (‘[a]ble to be defended with logic or justification; valid’) carries more normative force, suggesting that there is something invalid about illegitimate people themselves, rather than just describing the legal (or otherwise) nature of their relationships with parents.120 In 1967, Stone referred to the laws surrounding illegitimacy at that time in the UK as ‘the most outstanding example of legal discrimination against innocent people to
Zealand); Law Reform Committee of South Australia, Eighteenth Report of the Law Reform Committee of South Australia to the Attorney General Relating to Illegitimate Children, Report No 18 (1972); B D Inglis, 'The Family, the Law, and the Courts' (1973 ) 47 Australian Law Journal 647. 115 Cynthia Price Cohen, 'The Role of Nongovernmental Organizations in the Drafting of the Convention on the Rights of the Child' (1990) 12(1) Human Rights Quarterly 137, 143. 116 Unicef, 25 Years of the Convention on the Rights of the Child: Is the world a better place for children? (United Nations Children's Fund, 2014). 117 Krause, 'Equal Protection for the Illegitimate', above n 114. 118 O M Stone, ‘Report of the Committee on the Law of Succession in Relation to Illegitimate Persons’ (1967) 30 Modern Law Review 552, 556. 119 Angus Stevenson, Oxford Dictionary of English (Oxford University Press, 3rd ed, 2010) 1009. 120 Ibid.
69 Chapter Two – Historical Context be found in the law of this island’.121 Similarly, Sackville and Lanteri writing in Australia in 1970, remarked:
[T]here seems to be no rational basis in modern times for a moral or ethical judgment that the illegitimate child, by reason solely of his illegitimacy, is somehow blameworthy and therefore properly the subject of legal and social discrimination.122
The narrative calling for this reform very much framed it as a progressive reform which would remove discrimination and update the law to take into account changing social norms. Making legal parentage reflective of biogenetic parentage was framed as one more step in the direction of ‘truth’ and modern social values. For example, David Hambly and Neville Turner in their 1971 Australian Family Law text remarked:
The law in Australia which affects the illegitimate child and his parents calls for critical appraisal from law reformers. Every aspect, from the proof of paternity to the rights of an illegitimate child to succeed to property, reflects the slow response of the law to changes in social values.123
Similarly, in the UK, Dominik Lasok framed reform of illegitimacy as a question of enlightenment: ‘In the present days of enlightenment and a growing conscientiousness of social responsibilities of the individual there should be no obstacle to a formulation of the obligation of the father on the basis of the fact of procreation’. 124 Advocates for abolition of illegitimacy often ran two contradictory arguments: that illegitimacy was a discriminatory and arbitrary category which harmed children who fell within it, and that changing social mores meant that being found illegitimate and having their legal connections to a non‐genetic father and his kin no longer had real impacts for children, so that they were better off knowing ‘the truth’. For example, by 1970, the UK House of Lords suggested that the diminishing stigma around illegitimacy
121 Ibid 559. 122 Sackville and Lanteri, above n 6, 5.. 123 Hambly and Turner, above n 12, 477. 124 Lasok, 'Legitimation, Recognition and Affiliation Proceedings (A Study in Comparative Law and Legal Reform)', above n 49, 134.
70 Chapter Two – Historical Context tipped the balance in favour of children’s interest in ‘the truth’ as a reason for rebutting the presumption of parentage:
… the value to a child of a finding of legitimacy is now much less than it used to be, and that it is generally better for the child that the truth should out than that the child should go through life with a lurking doubt as to the validity of a decision when evidence, which would very likely have disclosed the truth, has been suppressed.125
C Linking biogenetic ‘truth’, the best interests of the child, and legal parentage
Second, we see the emergence of arguments that it was always in the best interests of the child to know the ‘truth’ regarding their genetic parentage, and that this justified reforms which would conflate genetic and legal paternity. In chipping away the evidentiary protections around the presumption of legitimacy, judges and jurists were also chipping away at the idea of legal parentage as a legalistic status distinct from knowledge of biogenetic parentage. In the process, they framed legal parentage as a question of metaphysical ‘truth’ in which law should merely reflect (particular biogenetic) facts. Here, the developing discourse of ‘genealogical bewilderment’ coincided with the enthusiasm of judges such as Lord Denning for ‘scientific advances’ which ‘give us fresh means of ascertaining [the truth]’.126 Despite the Commission’s emphasis on the benefit to the child of biogenetic parentage being ‘firmly established’, the recommendation that blood test results be admissible (and by implication, determinative) of legal parentage was not limited to cases in which it was being used to establish legal parentage. Where blood tests were used by a putative father to deny parentage, knowing ‘the truth’ would not give children any additional genetic genealogical information, though it could fundamentally alter the child’s legal kinship identity. This notion that knowledge of your genetic progenitors was important to a person’s identity and psychological health and development was relatively new. The
125 S v McC and M [1970] 3 AC 107, 111 (Lord Reid). 126 Re L [1968] 1 All ER 20, 1025.
71 Chapter Two – Historical Context term ‘genealogical bewilderment’ had been coined by Wellisch in 1952, but was popularised by Sants after a 1964 article.127 Sants suggested that a lack of physical resemblance between child and parent could hamper the child’s process of psychological identification, considered necessary to establish a stable concept of self.128 Sants also offered a psychological basis for the emphasis on knowledge of genetic ‘truth’ as an end in and of itself, suggesting that ‘conscious acceptance of the known facts, intolerable though they may appear to be, tends to improve rather than worsen relationships’.129 This willingness to use scientific evidence to identify a hidden, internal ‘truth’ about human relationships was seen by judges as a ‘modern’ approach to the law. Cairns J, for example, remarked, ‘[t]he modern policy of the law is to favour the production of any cogent evidence which will help to establish the true paternity of a child’.130 Previously, the courts had to weigh up the possibility of injustice to a husband required to pay maintenance for a non‐genetic child against the devastating consequences of bastardization for a child. This new notion of ‘the truth’ being in the interests of the child, enabled courts to (at least rhetorically) align the interests of children and misattributed fathers. Fisher, for example, remarked in 1969:
… if the question of compulsory blood tests arises, the Court simply must choose between two arguments; one favouring the search for truth, the other preferring the privilege of personal inviolability.131
In a number of cases, the concern for this type of injustice to the husband may have been influenced by concerns to preserve the whiteness of the husband’s patriline.
127 E Wellisch, ‘Children Without Genealogy: A Problem of Adoption’ 13 Mental Health, 41‐42; H J Sants, 'Genealogical Bewilderment in Children With Substitute Parents' (1964) 37 British Journal of Medical Psychology 133; Von der Heydt Von der Heydt, 'The Role of the Father in Early Mental Development' (1964) 37 British Journal of Medical Psychology 123. (1964). 128 Sants, above n 134, 136. 129 Ibid 138. 130 W v W [1964] P 67 at 69 (Cairns J), cited in D E Fisher, 'Serological Evidence and the Question of Paternity' (1968‐1969) 14 University of Queensland Law Journal 14, 15. 131 In the context, it appears that Fisher meant ‘inviolability’ in the physical sense of assessing whether taking blood from a child or putative parent was a violation of bodily autonomy Fisher, above n 130, 15.
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For example, in 1970, the House of Lords jointly heard two appeals from the Court of Appeal concerning whether evidence from blood group testing could be admitted to help determine whether a child was a ‘child of the marriage’ and therefore legitimate. In both cases, the white husband’s rationale for rejecting the child was grounded in the ‘coloured’ features of the child. Both wives had left the husband before the birth of the child in question. In S v S, the wife ‘came back with her new‐born baby. The husband said that it was a coloured child. He refused to accept it as his’.132 In W v W, after the birth, the husband requested a photo of all three children.133 In the Court of Appeal judgment, Denning MR recounted that
She sent him the photograph of the children. I have it here in my hand now. It shows the two elder children as obviously children of white parents. But Paul is very different in features, in colour and hair—so different that any ordinary person might think the father of Paul was a coloured man. The husband clearly formed that view. He thought that Paul was not his child, but must be the child of a coloured man.134
In W v W, the Court of Appeal (Denning MR dissenting) refused blood group testing because the ‘sole criterion’ was the child’s best interests, and any testing might exclude the husband as the child’s genetic father but ‘would not give the child any indication of the identity of his [genetic] father’.135 In S v S, in the Court of Appeal, Denning MR prevailed, finding that the child’s best interests were not the sole criterion (although, in this case, blood type testing was nonetheless in her social and financial interests).136 Rather than making the child’s best interests paramount, the ‘interests of justice’ required that the court ‘have before it the best evidence available’ and therefore ordered testing.137 When the appeals were heard jointly, the House of Lords followed Denning MR’s reasoning, finding that blood testing of infants in the context of deciding
132 S v S [1970] 1 All ER 1162, 1163 (Denning MR, Sachs and Karminski LJJ). 133 W v W [1970] 1 All ER 1157 (Denning MR, Winn and Cross LJ,UK Court of Appeal, Civil Division). 134 Ibid 1159. 135 Ibid 1160‐1161. 136 S v S [1970] 1 All ER 1162, 1164, 1165, 1170, Sachs LJ dissenting (Denning MR, Sachs and Karminski LJJ). 137 Ibid 1165, 1170, Sachs LJ dissenting.
73 Chapter Two – Historical Context a legitimacy issue did not come within the court’s custodial jurisdiction ‘where the interest of the infant is paramount’.138 Lord Reid remarked:
The person most affected by the refusal is the husband who denies paternity…The court must protect the child, but it is not really protecting the child to ban a blood test on some vague and shadowy conjecture that it may turn out to be to its disadvantage; it may equally well turn out to be for its advantage or at least do it no harm.139
Here, the courts invoked biological sciences and narratives of ‘truth’ to police racial boundaries and to prioritise . This fits with a history of biosciences being used in racialized ways within legal processes. Paul Rabinow, for example, documents how fingerprinting technologies were first implemented within crime policing by the India Staff Corps in Bengal in the 1890s because ‘the uniformity in the colour of the hair, eyes and complexion of the Indian races renders identification far from easy’.140
For these judges considering children’s interests, the shining light of truth was preferable to the half‐light of not‐knowing, even if the overexposure burned away the legal recognition of the lived family relationship which may have structured the child’s life up to that point.
D Abolishing illegitimacy, abolishing fatherlessness?
The next section seeks to unsettle the view that aligning legal and genetic parentage was a movement in the direction of enlightenment, ‘truth’ and the best interests of the child. It considers some of the perhaps unintended consequences of the abolition of illegitimacy in terms of its effect on the development of legal parentage. It examines a number of legal parentage cases decided prior to abolition of illegitimacy in order to explore the range of responses that were possible and asks whether in abolishing illegitimacy and replacing the notion of legal parentage as a Legalistic status
138 S v S, W v Official Solicitor [1970] 3 All ER 107, 112, 117, 124, 125 (Lord Reid, Lord MaDermott, Lord Morris of Borth‐y‐Gest, Lord Hodson and Lord Guest, House of Lords). 139 Ibid 113. 140 Paul Rabinow, 'Galton's Regret and DNA Typing' (1993) 17 Culture, Medicine and Psychiatry 59, 59, quoting Francis Galton, Finger Prints (Macmillan & Co, 1892) 150.
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(within Naffine’s taxonomy) with Metaphysical ideas of it as reflecting ‘truth’, a baby may have been thrown out with the bathwater.141 In discussing illegitimacy, judges and reform advocates meant one or more things. First, illegitimacy was understood as a social and legal stigma of being a child of an unwed mother. Second, it sometimes conveyed the lack of recognition of a social and genetic (but unmarried) father – usually the mother’s de facto husband. Finally, some judges and commentators spoke almost interchangeably about illegitimacy and ‘fatherlessness’ – meaning a lack of legal or social connection with a genetic father – ie situations where the mother had no ongoing interaction with the genetic father. These distinct meanings are important because they suggested different impacts, and different normative responses from law. The first required removal of legal disabilities which discriminated against people purely on the basis of their status as ‘illegitimate’ (ie abolishing discrimination). The second required law to recognise unmarried fathers who were also social fathers as legal fathers (ie extending recognition). For example, in the debates regarding the abolition of illegitimacy in the Victorian House of Assembly, the Member for Melbourne, Barry Jones emphasised this second meaning of illegitimacy, telling the story of the legal differences where a man had children with his ‘de facto wife’.142 The last response, however, suggested law had a role to play in re‐shaping family forms so that the man who had impregnated the mother outside any ongoing relationship would be re‐construed as a legal father on the basis of his biogenetic contribution alone. This last response went a step further in terms of theoretically abolishing the fatherless family in law. This final option was the approach taken in legislating abolishing illegitimacy in each Australian jurisdiction. For example, the South Australian Law Reform Committee in 1972 sought not just ‘[t]o amend the law so that
141 Ngaire Naffine, 'Who Are Law's Persons? From Cheshire Cats to Responsible Subjects' (2003) 66 Modern Law Review 346. 142 Victoria, Parliamentary Debates, Legislative Assembly, 16 October 1974, 1211 (Mr Jones).
75 Chapter Two – Historical Context some at least of the disabilities of illegitimacy do not attach to an illegitimate child’ but to:
… destroy in so far as this is socially and legally possible the distinctive legal consequences of illegitimacy so as to assimilate the rights and the position of an illegitimate child to that of a legitimate one.143
Many of the same commentators who discussed discrimination against ex‐ nuptial children also framed fatherlessness as a social problem.144 In their 1985 critique, Pollock and Sutton argue that the abolition of illegitimacy functioned not to equalise the situation of illegitimate and legitimate children, but to extend the rights and obligations of legal fatherhood to unmarried fathers.145 In the effort to make legitimacy ‘irrelevant’ to the ‘rights and duties between parent and child’,146 many advocates of reform took the view that parental rights and duties should instead depend on the ‘fact of parenthood’.147 How this ‘fact’ was to be determined, however, would still have to rest on presumptions drawn from social facts. For example, Sackville and Lanteri endorsed the recommendations made in the UK Society of Public Teachers of Law report. These would extend the rebuttable presumptions of parentage to de facto husbands and men who signed the register of births as ‘father’ or who agreed to pay maintenance, and would treat formal acknowledgments of paternity as conclusive evidence of parentage. 148 After the UK Parliament abolished illegitimacy in 1969, New Zealand quickly followed using a very similar model.149 When the Australian States and Territories legislated to abolish illegitimacy, each jurisdiction except for Western Australia followed
143 Law Reform Committee of South Australia, Eighteenth Report of the Law Reform Committee of South Australia to the Attorney General Relating to Illegitimate Children, Report No 18 (1972) 4. 144 Neave, above n 87, 348. 145 Scarlett Pollock and Jo Sutton, 'Father's Rights, Women's Losses' (1985) 8(6) Women’s Studies International Journal 593. 146 Sackville and Lantieri, above n 6. 147 Sackville and Lantieri, above n 6; Lasok, 'Legitimation, Recognition and Affiliation Proceedings (A Study in Comparative Law and Legal Reform)', above n 49; Lasok, 'Family Law Reform in England', above n 6. 148 Sackville and Lantieri, above n 6; Society of Public Teachers of Law, The Illegitimate Child in English Law, (Family Law Committee Report to Law Commission, 1966). 149 Family Law Reform Act 1969 (UK); Status of Children Act 1969 (NZ).
76 Chapter Two – Historical Context the same model. In 1974, the Victorian Parliament passed The Status of Children Act 1974 – An Act to remove the Legal Disabilities of Children born out of Wedlock. Under section 3, titled, ‘[a]ll children to be of equal status’ the Act provided that:
For all the purposes of the law of Victoria the relationship between every person and his father and mother shall be determined irrespective of whether the father and mother are or have been married to each other and all other relationships shall be determined accordingly.150
Within the Victorian Parliament the debate focussed on removal of the legal disabilities of illegitimacy, and whether illegitimate children should come within the meaning of ‘children’ in all future distributions of wills or only in those wills made after the commencement of the legislation. A number of members raised the question of how exactly legal fatherhood would be determined ‘irrespective of whether the father and mother are or have been married to each other’ – for example, Jack Galbally queried, ‘how does the illegitimate child establish who his father is, what proofs will be required?’151 and Mr Clarke asked, ‘What would happen if inadvertently or by an incorrect claim the wrong father’s name were entered?’152 These questions remained unanswered. The legislation itself was coy. While the Act abolished the status of illegitimacy and purportedly the relevance of marriage to determining legal parentage, it wasn’t clear how legal parentage could be determined for ex‐nuptial children. As Young notes, ‘biology – rather than marriage – became the absolute determinant of parentage’, but barriers to accurate genetic paternity testing meant that ‘presumptions continued to play an important role in establishing parentage’.153 If ‘bastardy’ no longer existed as a legal status, then it was assumed that a determination of non‐paternity could no longer carry legal disabilities or disadvantages for the child. This was a ‘perfectly simple’ aspirational approach to addressing discrimination – as though legislatively eliminating difference could instantly banish all
150 Status of Children Act 1974 (Vic), s 3. 151 Victoria, Parliamentary Debates, Legislative Council, 16 October 1974, 2501 (Mr Galbally). 152 Victoria, Parliamentary Debates, Legislative Council, 16 October 1974, 2504 (Mr Clarke). 153 Lisa Young et al, Family Law in Australia (Lexis Nexis Butterworths, 8th ed, 2013), 355.
77 Chapter Two – Historical Context discrimination on the basis of that difference.154 As Neave pointed out after abolition, this simplicity belied the continuing legal complexities for ex‐nuptial children – the ‘factual disabilities’ as Sackville and Lanteri called them.155 Reformers were discovering that changing the words of the statute only addressed one aspect of the problem. When it came to the disadvantages suffered by illegitimate children, ‘the problem’ for many commentators included not just the differential legal treatment of legitimate and illegitimate children, but the social differences triggering this different treatment. Specifically, many defined ‘the problem’ as the lack of legal, social or economic connection between some children and their genetic fathers. As Neave noted, ‘The rights conferred upon an ex‐nuptial child by the Status of Children Act in respect of his father’s estate are of only theoretical value if paternity cannot be proved’.156 The distinction which Sackville and Lanteri make between the ‘legal’ and ‘factual’ disabilities of illegitimate children indicated the extent to which the definition of legal fatherhood had grown beyond a legal question into a fundamental economic question for the welfare state. Sackville and Lanteri referred to it as ‘the problem of private support for illegitimate children’ and remarked:
The basic difficulty is to improve the efficiency of affiliation proceedings as means of enforcing rights to support and also to improve their reliability as decisions on the factual question of paternity.157
Sackville and Lanteri recommended that the state ‘take a much more active role in affiliation proceedings’ and that blood tests be used to ‘enhance the reliability’ of paternity findings in affiliation proceedings.158 It was this shift, from the legal to the economic management of fatherlessness, which was more fully expressed in the introduction of the CSS. The abolition of illegitimacy, meant that marriage could no longer function as the bright‐line determinant of legal parentage. Despite the aspiration towards non‐
154 Sackville and Lanteri, above n 6, 63. 155 Neave, above n 87, 331; Sackville and Lanteri, above n 6, 63. 156 Neave, above n 87, 337. 157 Sackville and Lanteri, above n 6, 63. 158 Sackville and Lanteri, above n 6, 63.
78 Chapter Two – Historical Context discrimination, courts still needed some means to determine who was a legal father of any given child. As John Dewar notes, this meant, ‘that some other legal technique was needed to link men to children, and to impose parental obligations on men, especially obligations of support’.159 Once illegitimacy was abolished, definitions of legal fatherhood were set adrift, no longer able to rely on one definitive tether to connect fathers to children: legal marriage. In this messy, uncertain state, courts and legislators sought stability and certainty by treating genetic fatherhood as the ultimate decider. Despite this, marriage was still a key means to link men and children via statutory presumptions of legitimacy. For example, s 5 of the Status of Children Act 1974 (Vic) provided:
A child born to a woman during her marriage or within ten months after the marriage has been dissolved by death or otherwise shall, in the absence of evidence to the contrary, be presumed to be the child of its mother and her husband, or former husband, as the case may be.160
The Status of Children Acts created new (also rebuttable) presumptions of parentage where a man acknowledged paternity,161 signed the birth certificate,162 or where a court found him to be a legal father.163 In the 1980s, a further cycle of reforms swept around the states and territories, extending the presumption of parentage to men in de facto relationships with the mother of a child.164 For example, the Victorian Act provided:
A reference in this Part to a married woman includes a reference to a woman who is living with a man as his wife on a bona fide domestic basis although not married to him.165
159 John Dewar, 'Family Law and Its Discontents' (2000) 14 International Journal of Law, Policy and the Family 59 to 85, 63. 160 See also Children (Equality of Status) Act 1976 (NSW), s 10. 161 Status of Children Act 1974 (Vic) s 8(2), Children (Equality of Status) Act 1976 (NSW), s 11. 162 Status of Children Act 1974 (Vic) s 8(1); Children (Equality of Status) Act 1976 (NSW), s 11. 163 Status of Children Act 1974 (Vic) s 8(3), (5)‐(7); Children (Equality of Status) Act 1976 (NSW), s 12. 164 See, eg, Status of Children (Amendment) Act 1984 (Vic) s 10A. This reform was urged by Neave in 1976. Neave, above n 87, 338. 165 Ibid s 10A(1).
79 Chapter Two – Historical Context
This new emphasis on biology also put at risk the legal parentage of the small but increasing numbers of children born via donor conception. In response to concerns about how the new emphasis on ‘natural’ parents would affect children conceived via donor insemination,166 the same Act created new, irrebuttable presumptions of parentage for consenting husbands (including de facto husbands) in regard to their wife’s child conceived via assisted reproductive treatment,167 and for birth mothers conceiving using donor ovum.168 One of the key obstacles to equalising the situation of nuptial and ex‐nuptial children was the constitutional limitation on the Federal Parliament’s powers to legislate.169 While nuptial children clearly fell under the marriage power, giving Federal and State parliaments concurrent legislative power,170 the situation of children born outside of marriage was less clear. For example, in its 1986 decision, Re F, ex parte F (‘Re F’), the High Court held that a blood test result indicating non‐paternity ‘showed that the husband cannot be the father of the child’ and therefore that the ‘necessary connexion between the child and the marriage does not in truth exist’.171 This meant that existing Family Court orders under which the four year‐old child had lived with his father since he was eighteen months old were quashed, and the matter left to be determined by the Equity Division of the New South Wales Supreme Court.172 Because
166 Dominique De Stoop, 'Human Artificial Insemination and the Law in Australia' (1976) 50 Australian Law Journal 298, 303; Marylyn Mayo, 'The Legal Status of the AID Child in Australia' (1976) 50 Australian Law Journal 562, 565. 167 Status of Children (Amendment) Act 1984 (Vic) s 10C, 10D. 168 Status of Children (Amendment) Act 1984 (Vic) s 10E. 169 Under the Federal Constitution, the Commonwealth has power to legislate only on the areas of law listed in s 51. 170 Australian Constitution s 51(xxi). 171 Re F; Ex parte F [1986] HCA 41, [2], [7] –[8]. This constitutional limitation on the Commonwealth’s power to legislate regarding ex‐nuptial children has since been remedied by legislation referring powers from the States and Territories: Commonwealth Powers (Family Law – Children) Act 1986 (NSW); Commonwealth Powers (Family Law – Children) Act 1987 (Vic); Commonwealth Powers (Family Law – Children) Act 1986 (SA); Commonwealth Powers (Family Law – Children) Act 1987 (Tas); Commonwealth Powers (Family Law – Children) Act 1990 (Qld); Family Law Amendment Act 1987 (Cth). Western Australia continues to maintain its own family law system separate from the federal system, and will therefore remain beyond the scope of this thesis. 172 Re F; Ex parte F [1986] HCA 41, [2], [4].
80 Chapter Two – Historical Context the Family Law Act relied on the marriage and divorce powers under sections 51(xxi) and 51(xxii) of the Federal Constitution, if there was no connection between the child and the marriage, then the Family Court had no jurisdiction. (This was remedied by the States referring powers over extramarital children to the Commonwealth between 1986 and 1990.173) Like the State and Territory Status of Children Acts, the 1987 Family Law Act amendments codified what had been the presumption of legitimacy into a number of presumptions of parentage:
66P. (1) A child born to a woman during a marriage to which the woman is a party shall be presumed to be a child of the marriage. (2) A child born to a woman within 10 months after: (a) a marriage to which the woman is a party is terminated by death; or (b) a purported marriage to which the woman is a party is annulled; shall be presumed to be a child of the marriage. (3) Where: (a) after the parties to a marriage separated, they resumed cohabitation on one occasion; (b) within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart; and (c) a child is born to the woman within 10 months after the period of cohabitation but after the dissolution of the marriage; the child shall be presumed to be a child of the marriage.174
These amendments also extended the presumption of paternity to cohabiting male partners of mothers:
Presumption of paternity arising from cohabitation
173 Commonwealth Powers (Family Law – Children) Act 1986 (NSW); Commonwealth Powers (Family Law – Children) Act 1987 (Vic); Commonwealth Powers (Family Law – Children) Act 1986 (SA); Commonwealth Powers (Family Law – Children) Act 1987 (Tas); Commonwealth Powers (Family Law – Children) Act 1990 (Qld); Family Law Amendment Act 1987 (Cth). Western Australia continues to maintain a separate family law system from the federal system. 174 Family Law Amendment Act 1987 (Cth) s 28. These provisions were subsequently renamed as 69P and 69Q in the current Family Law Act 1975 (Cth).
81 Chapter Two – Historical Context
66Q. A child born to a woman who, for a period of at least 6 months ending not more than 10 months before the birth, cohabited with a man to whom she was not married shall be presumed to be a child of that man.175
These presumptions meant that, in NSW for example, the statutory presumption of parentage could be rebutted on the balance of probabilities and courts were empowered to order blood tests to prove or disprove paternity.176 While the Victorian Status of Children Act did not provide for blood tests to determine paternity, when the new Federal Family Law Act was passed in 1975, it empowered the court to make orders requiring ‘either party to the marriage or any other person to give such evidence as is material to the question’.177 Whether this authorised orders requiring blood‐type testing for determining genetic paternity was unclear. In Lamb & Lamb, in 1977, Asche SJ considered a mother’s request for the Family Court to make orders requiring blood tests for paternity in regard to one of her children whom she asserted was conceived with her lover rather than with her husband. Asche S J examined whether s 64(1)(c) under the then Family Law Act 1975 – which empowered the court to make ‘such order in respect of those matters as it thinks proper’ – could extend to an order for paternity testing. Asche S J concluded that:
… even when it could be said that a blood test was conducive to the welfare of the child as the paramount consideration — and this would not always be so, see S v McC (supra) — I cannot feel that the power to make an order of such far reaching consequences, not only to spouses and children but to third parties, could be drawn from a sub‐section in general terms, ancillary to two other sub‐sections, without any further specific references.178
175 Family Law Amendment Act 1987 (Cth) s 28. 176 See, eg, Children (Equality of Status) 1976 (NSW), ss 18, 19 and 20. Similarly in South Australia: Community Welfare Act, 1972 Act 1972 (SA), 112. Family Law Act 1975 (Cth) s 99. It wasn’t until 1987 that the Family Law Act specified that the burden of proof for rebutting presumptions of parentage was the balance of probabilities: Family Law Amendment Act 1987 (No 181) (Cth) s 28. 177 Family Law Act 1975 (Cth) s 99. 178 Lamb (No 1) (1977) FLC 90‐225 [13] (Asche SJ). ‘S v McC’ refers to the House of Lords case S v S, W v Official Solicitor [1970] 3 All ER 107 (Lord Reid, Lord MaDermott, Lord Morris of Borth‐y‐Gest, Lord Hodson and Lord Guest, House of Lords).
82 Chapter Two – Historical Context
In 1982 in DMW & CGW the High Court remarked that if indeed the Family Court had ‘no power to order a blood test’, its powers ‘seem to be deficient’.179 In 1983, more specific powers for parentage testing orders were added to the Family Law Act under s 99A, ‘where the paternity of a child is a question in issue in proceedings under this Act’ enabling the court to direct a child, mother or ‘relevant person’ ‘to submit to a prescribed medical procedure for the purpose of enabling the preparation of a report concerning the paternity of the child’.180 Further amendments in 1987 shifted the provisions from s 99A to s 66V and 66W, in the process, broadened the power so as to allow the court to order ‘any person’ to ‘submit to medical procedures to determine parentage’ where ‘the parentage of a child is in issue in proceedings’ under the Act.181 In this shift from ‘paternity’ to ‘parentage’, the distinctions between the biological fact of genetic relatedness and the legal status of being a parent were further eroded. Then in 1995, the provision was moved again, this time to ss 69V and W, under the new subtitle of ‘orders for carrying out of parentage testing procedures’.182
III UNIFYING THE ‘NATURAL’ AND THE ‘LEGAL’ FATHER
Once marriage was no long the exclusive means for creating legal fatherhood, judges needed another means to link children to fathers. Genetic paternity had the advantage of potentially connecting every child with a legal father. Further, the advent of DNA paternity testing technology gave judges what they understood to be a ‘virtually certain’ test to resolve what would otherwise be a complicated and difficult legal determination.183 A significant and growing socio‐legal literature has addressed the fragmentation of legal parenthood (and fatherhood in particular) in the face of significant social, legal
179 DMW v CGW (1982) 151 CLR 491 at 505. 180 Family Law Amendment Act 1983 s 54, inserting s 99A of the Family Law Act 1975. The requirement that ‘parentage of a child is a question in issue in proceedings under this Act’ remained, however. 181 Family Law Amendment Act 1987 (No 181) (Cth) s 36. 182 Family Law Reform Act 1995 (Cth) s 36. 183 G & H [1993] FamCA 39 (Fogarty, Straus and Wilczek JJ). This passage has been cited in many subsequent parentage cases, including TNL & CYT [2005] FamCA 77 [2005]); Kohari v NSW Trustee & Guardian [2016] NSWSC 1372 (30 September).
83 Chapter Two – Historical Context and technological change.184 This section suggests, in contrast, that abolition of illegitimacy instead represented a moment of unification and universalisation for genetic and legal fatherhood – an attempt to extend the state of having a legal father to all children, irrespective of their lived family context.185 This unification occurred principally by way of a jurisdictional shift, in which ex‐nuptial children were moved out of the category of ‘child of the marriage’, and therefore out of the legislative powers of the Commonwealth and therefore the Family Law Act 1975 (Cth). Unifying ‘legal’ and ‘natural’ fatherhood therefore required not just creating new links between unmarried or uninvolved genetic fathers and their offspring, but also severing links between those children and their non‐genetic fathers. As such, the bundling together of ‘legal’ and ‘natural’ fatherhood represented a shift from earlier understandings of family which centred on the married household and its members. This part of the chapter traces this jurisdictional shift and the emerging of rhetoric of ‘truth’ and ‘biology’ and evolving genetic paternity testing technologies which judges used to understand and explain it. As of 1959, the Matrimonial Causes Act 1959 (Cth) used an expansive definition of ‘child of the marriage’ which included:
a child of either the husband or wife (including an illegitimate child of either of them and a child adopted by either of them) if, at the relevant time, the child was ordinarily a member of the household of the husband and wife…186
184 Carol Smart and Bren Neale, Family Fragments? (Polity Press, 1999); Richard Collier and Sally Sheldon, Fragmenting Fatherhood: A Socio‐Legal Study (Hart, 2008) 235 and throughout. See also Sally Sheldon, 'Fragmenting Fatherhood: The Regulation of Reproductive Technologies.' (2005) 68(4) Modern Law Review 523; Alison Diduck, ‘“If Only We Can Find the Appropriate Terms to Use the Issue Will Be Solved”: Law, Identity and Parenthood' (2007) 19(4) Child and Family Law Quarterly 458; Alleardo Zanghellini, 'Who is Entitled to Parental Responsibility? Biology, Caregiving, Intention and the Family Law Act 1975 (Cth): A Jurisprudential Feminist Analysis' (2009) 35 Monash University Law Review 147; Deborah Dempsey, 'Donor, Father or Parent? Conceiving Paternity in the Australian Family Court' (2004) 18 International Journal of Law, Policy and the Family 76. 185 I note that in making their arguments about the fragmentation of fatherhood (both legal and in practice) Collier and Sheldon are at pains to point out that ‘their account of fragmentation should not imply a past golden age of integrated fatherhood’. Collier and Sheldon, above n 175; Robert Leckey, 'Book Review: Richard Collier, Men, Law and Gender: Essays on the “Man” of Law; Richard Collier and Sally Sheldon, Fragmenting Fatherhood: A Socio‐Legal Study' (2011) 20 Social & Legal Studies 123, 125. 186 Matrimonial Causes Act 1959 (Cth) s 6.
84 Chapter Two – Historical Context
It is helpful to refer to this as a social definition of ‘child of the marriage’ as it understands the family as a social institution centring on the marital household, rather than as a biological or genetic grouping. The Family Law Act used a similar definition, though it referred instead to an ‘ex‐nuptial child’.187 In Russell v Russell, in 1976, however, the High Court struck down the provision on the basis that it was beyond the Commonwealth’s power to legislate under the marriage and divorce powers under s 51(xxi) and (xxii) of the Constitution.188 This power, the court reasoned, covered only the ‘natural and adopted children of the parties to the marriage’, and therefore excluded children who were the ‘natural’ or adopted children of only one party to the marriage, such as a ‘child born of an extra‐marital association of a spouse with another person’.189 What is significant here is the change in the ‘natural meaning’ of ‘child of a marriage’ from one which included children of either party to the marriage living in the household, to one which limited ‘child of the marriage’ to biogenetic and adopted children of both parties. As a result, any other child who might have been a member of the household was characterised by the High Court as ‘a child who is in truth not the child of a marriage’.190 In 1983, the Federal Parliament amended the Family Law Act to expand the definition of ‘child of the marriage’ further to include a child
who has been, and was at the relevant time, treated by the husband and wife as a child of their family, if, at the relevant time, the child was ordinarily a member of the household of the husband and wife.191
The same definitions section also deemed an adopted child and a child born via donor sperm to be a ‘child of the marriage’. In 1986, these definitions were tested in the case of Re F.192 There, the parents of the four‐year‐old child had separated when she was about eighteen months old, and she had lived exclusively with the husband since
187 See Family Law Act (1976) s 5(2). 188 Russell v Russell (1976) 134 CLR 495, [19] (Barwick CJ, Gibbs, Stephen, Mason and Jacobs JJ). 189 Ibid [5] (Brennan J). 190 Ibid [19]. 191 Family Law Amendment Act 1983 (Cth). 192 Discussed above at page 34: Re F, ex parte F (1986) 161 CLR 376 (Gibbs CJ, Wilson J, Brennan J, Dawson J, Mason J, Deane J).
85 Chapter Two – Historical Context then. The mother then instigated blood type testing, which showed that the husband could not have been the genetic progenitor of the child. She then sought to overturn the custody orders on the basis that the child was not ‘a child of a marriage’ and therefore, the Family Court did not have jurisdiction over the dispute, because the social definition of ‘child of a marriage’ in the Family Law Act went beyond the powers allocated to the Federal Parliament in the Constitution.193 Chief Justice Gibbs (along with Wilson, Brennan and Dawson JJ) agreed, viewing the ‘necessary connexion’ as lacking where the husband was disproved as the genetic progenitor but had functioned as her social father since birth without a legal adoption. The majority held that:
… the Parliament cannot bring a case within s.51(xxi) [the Marriage Power] by deeming a child to be a child of a marriage if the necessary connexion between the child and the marriage does not in truth exist.194
The court did not address whether a child conceived via donor conception with the consent of the husband was also to be excluded from the category of ‘child of the marriage’. Brennan J, however, went into some detail explaining why adoption could make a child ‘a child of the marriage’ but marriage of a parent could not.
[‘Child of the marriage’] does not embrace the relationship between, on the one hand, the spouses and, on the other, a child born of an extra‐marital association of a spouse with another person. To treat such a child as a child of the marriage of the spouses when he or she has not been adopted by them is to exclude or diminish the relationship between the child and the parent who is not one of the spouses [ie the other biogenetic parent].195
Brennan J’s concern, then, was less about the lack of ‘necessary connection between the child and the marriage’ than about the exclusion of the biogenetic parent who was not a party to the marriage. This would mean that the rights and obligations of the genetic father regarding the child would be erased without his consent. Adoption
193 Namely Australian Constitution s 51(xxi), the Marriage Power, and s 51(xxii), which empowers the Federal Parliament to legislate for ‘divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants’. 194 Re F, ex parte F (1986) 161 CLR 376 (Gibbs CJ, Wilson J, Brennan J, Dawson J, Mason J, Deane J). 195 Re F, ex parte F (1986) 161 CLR 376 at [5] (Brennan J).
86 Chapter Two – Historical Context worked to replace the ‘natural parents’ with the adoptive parents, whereas recognising an ex‐nuptial child of a mother as a ‘child of the marriage’ would leave the position of the genetic father uncertain. Dawson J rationalised taking a biogenetic approach by characterising children as ‘the product of the marriage’:
A child of a marriage is the product of the marriage and it is this fact which provides the connexion between the marriage and a law regulating the rights of the parents to the custody of such a child. An ex‐nuptial child is not the child of a marriage and whilst it may be brought into the household of the partners to a marriage, it cannot be brought into the marriage relationship, which is a legal relationship, except by adoption or legitimation.196
The language used here is significant. Brennan J referred to the child as ‘not born of the union of husband and wife’ – suggesting that the child’s connection to the marriage had to be constitutive – either biologically or via the powers of the court making an adoption.197 In contrast, Mason and Deane JJ described marriage as ‘a social institution’ which ‘has traditionally been a source of rights and duties of persons other than those who are the immediate parties to it’.198 None of the judgments in Re F used the terms ‘medical’, ‘biological’ or ‘genetic’, preferring to use the term ‘the father’, or to refer to ‘natural’, or ‘true parents’.199 In contrast, once the paternity testing technology brought before the courts shifted from blood type testing to DNA, the language around parentage and evidence rapidly changed. A key case was Re C, decided by Fogarty J in 1992, in which a woman sought maintenance from her former lover to enable her seventeen‐year‐old son to attend university.200 The son had been born during the woman’s marriage, and the husband was listed on the birth certificate as the father, but it was accepted that while the mother was estranged from her husband (and around the time the child was conceived),
196 Re F, ex parte F (1986) 161 CLR 376, [8] (Gibbs CJ, Wilson J, Brennan J, Dawson J, Mason J, Deane J). 197 Ibid [3]. 198 Ibid [1]. 199 Ibid [11] (Gibbs CJ). 200 Re C (No 2) (1992) 15 Fam LR 355 (Fogarty J).
87 Chapter Two – Historical Context she had engaged in a relationship with a lover (the Respondent), but had reunited with the husband before the child was born. The marriage had ended when the child was three and the husband appeared to have had little to do with the child since.201 The Respondent had only seen the child a few times, and had not had any parenting role. The Respondent, mother and child had participated in both blood type testing and DNA testing. The blood type testing indicated the Respondent was not excluded as the child’s genetic father. The results of the first DNA test, however were inadmissible because it transpired that the samples had not been tested within the requisite time frame. The Respondent, however, having seen the results from the first DNA test then refused to participate in any further DNA testing. Fogarty J considered whether he could draw an adverse inference from the Respondent’s refusal to be tested and concluded that while he could not use the refusal to infer that the result of the first DNA test was not in the Respondent’s favour, he could use it more generally to make an inference adverse to the Respondent. Together with the other evidence, Fogarty J concluded this was sufficient to rebut the presumption of parentage (ie that the child was the genetic child of the husband). Fogarty J therefore held that the mother’s former lover (the Respondent) was ‘the father of the child’, and that despite having had minimal contact with the child over the years, was liable to pay maintenance backdated to the date of the trial. 202 Fogarty J remarked on the nature of paternity determinations:
However, paternity is a medical issue rather than a legal issue, although where there is a dispute it needs to be determined within the legal framework. With the rapid development during the 1970s and 1980s of genetic knowledge and testing the position has now been reached where in the vast majority of cases, that issue can be placed squarely where it belongs, namely in the medical arena.203
201 Ibid 356. It was not clear whether the mother had attempted to seek maintenance from the husband. If she had, he may have been able to rebut the presumption of paternity arising from marriage on the basis of evidence that they were separated and she was in another heterosexual relationship around the possible time of conception. 202 Ibid 365. 203 Ibid 360.
88 Chapter Two – Historical Context
These words were cited in Lindenmayer J’s trial decision in the same year in G v H, where a woman who had worked as a sex worker sought child maintenance from her partner at the time, arguing that she used contraception with all her clients but not with him. Mr H, however, refused to participate in court‐ordered DNA paternity testing. Lindenmayer J held that an adverse inference could not be drawn in the circumstances because it was,
impossible to infer that the true reason for the respondent's refusal was a belief on his part that he was the father or at least that there is such high risk of that conclusion being reached that he preferred to stifle that evidence.204
The mother appealed, and in 1993, the Full Court of the Family Court overturned the decision, ruling that an adverse inference was appropriate in the circumstances and that Mr H was therefore the genetic father. Here Fogarty J elaborated on his previous reasoning from Re C, remarking,
Paternity is now a medical and not a legal issue. Society is entitled, through the legislature and the Courts, to an inexpensive, prompt and virtually certain procedure to decide this question. Paternity is no mere inter partes issue. The child and society have a vested interest in the correct outcome. The reasons for that are many, including heredity, the sense of identity and the private and public obligation of financial support directly relevant in this case and so emphasized by the legislature over the past decade.205
Fogarty J contrasted the prospect of ‘inexpensive, prompt and virtually certain’ genetic parentage testing with the ‘rather undistinguished affairs’ which paternity proceedings previously involved, requiring courts to inquire into ‘credibility, condoms and menstrual cycles’.206 There is a sense of palpable relief here – that the court may no longer have to trawl through the details of people’s sexual and menstrual lives, and frustration that Mr H had refused to provide the evidence which would been ‘most likely to decide the
204 G v H [1992] FamCA 51 (Lindenmayer J) [43]. 205 G & H [1993] FamCA 39 (Fogarty, Straus and Wilczek JJ) [2]. This passage has been cited in many subsequent parentage cases, including TNL & CYT [2005] FamCA 77; Kohari v NSW Trustee & Guardian [2016] NSWSC 1372. 206 G & H [1993] FamCA 39 (Fogarty, Straus and Wilczek JJ) [3].
89 Chapter Two – Historical Context issue beyond controversy’.207 DNA testing was attractive to judges in that it offered an almost definitive answer regarding genetic paternity, but it also contributed to the collapsing distinctions between biogenetic paternity as a basis for filiation and maintenance, and legal parentage as founded around the married (and social) family.
A From affiliation to assessment – legal parentage and the introduction of the Child Support Scheme
The changes in rhetoric and paternity testing technologies discussed above were influenced, and fed into, significant social changes in intimate relationships, family practices and welfare support provided by the State. The next part considers the interweaving of these social and legal developments, and the policy process which led to the introduction of the Child Support Scheme (CSS) during this period. It argues that the CSS helped normalise the bundling together of legal, genetic and economic fatherhood and integrated this bundled model of legal parentage into state regulation of families and the balance between private and public support of children. With the introduction of new no‐fault divorce laws as part of the Family Law Act 1975 (Cth) came a steep increase in divorces. As divorce and separation became more widespread, organisations such as the Institute of Family Studies observed that there was:
… overwhelming evidence, both in Australia and overseas, that maintenance is rarely paid. Even where it is paid, the amount transferred is frequently inadequate to pay even half the cost of raising children, which places additional financial burdens on women, who are almost invariably the custodial parent.208
At the same time, ex‐nuptial births were rising exponentially, as indicated in figure 2.5.
207 Ibid. 208 Margaret Harrison, 'Introduction' in Peter McDonald (ed), Settling Up: Property and Income Distribution on Divorce in Australia (Australian Institute of Family Studies, 1986) 1, 5.
90 Chapter Two – Historical Context
2.5 Ex‐nuptial births as a proportion of all births, Australia ‐ 1910 to 2010
209
There, in one steeply rising line, is the evidence of massive social change, whether it is attributed to the sexual revolution, feminism, introduction of the Sole Parent Pension or the declining influence of the churches and conservative morals.210 It is important to note that, while the rise in the rate of ex‐nuptial births was very significant before the abolition of illegitimacy (for example, from 4.51% in 1956‐60 to 9.68% in 1972211), it has more than tripled since illegitimacy was abolished.212 This dramatic shift has meant that for at least one in three children born in Australia today, marriage is no longer relevant to determining their legal parentage. As ex‐nuptial births rose, so did the number of families claiming the sole parent pension, with the result that ‘government expenditure on single parent pensions increased by 245 per cent in real terms’ from 1973/74 to 1985/86.213 The early 1980s saw growing concern from the Federal Government – and in response a number of reports suggested policy reforms to address this ‘problem’ of burgeoning sole parent pensions and ineffective assessment and enforcement of
209 Australian Bureau of Statistics Births, Births 2010, Cat. No 3301.0 (2010) 13. 210 Swain and Howe, above n 37, 197. 211 L T Ruzicka, 'Non‐Marital Pregnancies in Australia Since 1947' (1975) 7 Journal of Biosocial Science 113, 116. 212 As of 2010, 34% of births were ex‐nuptial. Australian Bureau of Statistics, Births, 2010, Cat. No 3301.0 (2010) 13. 213 Helen Rhoades, 'Australia's Child Support Scheme ‐ Is It Working?' (1995) 7 Journal of Child Law 26, 27.
91 Chapter Two – Historical Context maintenance.214 Many, like Bettina Cass, saw increasing pension payments and single‐ parent poverty as two symptoms of the same problem – a lack of enforcement of the financial responsibilities of non‐resident parents (mostly fathers):
As a proportion of all families in Australia, sole parent families rose from 9 per cent in the mid 1970s to the current figure of over 14%. ... In the overwhelming majority of cases sole parent families are mainly the outcome of the breakdown of a marriage or a de facto relationship; less than 20% involve births to mothers who have never lived with the father. In other words, in the case of most sole parent families, another parent has in the past shared responsibility for child expenses and care of children. As the proportion of sole parents has increased over the past decade [1976‐1986], so has the proportion reliant on a pension or benefit increased from 65% to 85% over the decade.215
While the need for better economic support of single parent families was clear, there were policy disputes around the best mechanism for such support, and whether it would be framed as (public) tax or (private) maintenance. In November 1984, Meredith Edwards, Margaret Harrison and Patricia Harper gave a paper recommending ‘a tax levy being placed on the gross income of the liable parent. This levy would be a percentage of the parent’s regular income.’216 In December 1985, the Family Law Council released a report on Maintenance Enforcement.217 This shift in language – from
214 Attorney‐General's Department, A Maintenance Agency for Australia: The Report of the National Maintenance Inquiry, (1984); Harrison, 'Introduction', above n 199; Family Law Council, Report on Maintenance Assessment and Collection (1985); Cabinet Sub‐Committee on Maintenance, Parliament of Australia, Child Support ‐ A Discussion on Child Maintenance (1986); Bettina Cass, Social Security Review, Income Support of Families with Children, Issues Paper No 1 (1986); New South Wales Law Reform Commission, De Facto Relationships, Report No 36 (1983); Linda Holub, The Child Support Agency: A New Era in Child Maintenance? (Australian National University, 1989) 10‐11. 215 Cass, above n 214. 216 Meredith Edwards, Patricia Harper and Margaret Harrison, 'Child Support: Public or Private Duty?' (1985) 4(4) Australian Society 18. 217 Family Law Council, Report on Maintenance Assessment and Collection (1985); Holub, above n 205, 11‐ 12.
92 Chapter Two – Historical Context a ‘tax’ to ‘maintenance enforcement’ is a telling one, revealing a policy trajectory from public to private responses to poverty. As Parkinson notes:
Governments needed to find ways to privatize the obligation to support children, or at least to reduce the extent of taxpayers’ responsibility for ensuring that children did not live in poverty.218
When the CSS was established, two main reasons were advanced for attaching support liabilities to genetic fathers – to address poverty in sole parent families, and to rein in the steeply rising costs of social security.219 A key element of the proposed solution was creating new norms around parentage and parental responsibilities. Fogarty J, a Family Court judge who was appointed in 1987 to chair the Child Support Consultative Group, remarked that one of the key aims of the scheme was to ‘change the ethos from maintenance being voluntary to it being part of the social fabric’.220 As Cass’s report indicated, most of the increase in sole parent families came from relationship breakdown – leaving women to raise children alone.221 The financial support provided by fathers after relationship breakdown was ‘not only inadequate but rarely fully complied with’.222 A smaller proportion were mothers who had never lived with the biological father of their child, and who might, had they faced the same situation in the years prior to the introduction of the Sole Parents’ Pension, have been forced (whether by hospital practice, social stigma or economic circumstance) to relinquish their child. More unmarried and separated mothers were parenting alone,
218 Patrick Parkinson, 'Family Law and the Indissolubility of Parenthood' (2006) 40(2) Family Law Quarterly 237; Patrick Parkinson, Family Law and the Indissolubility of Parenthood (Cambridge University Press, 2011) 215. 219 Belinda Fehlberg and Mavis Maclean, 'Child Support Policy in Australia and the United Kingdom: Changing Priorities but a Similar Tough Deal for Children?' (2009) 23(1) International Journal of Law, Policy and the Family 1, 5. See also Linda Hancock, 'Reforming the Child Support Agenda: Who Benefits?' (1998) 12 Just Policy 22. 220 John Fogarty (1995) Child Support Scheme Seminar, September 4, taped proceedings, Centre for Public Policy, University of Melbourne, cited in Linda Hancock, 'Reforming the Child Support Agenda: Who Benefits?' (1998) 12 Just Policy 20, 22. 221 Cass, above n 214. 222 Margaret Harrison, 'Maintenance, Custody and Access' in Peter F McDonald (ed), Settling Up: Property and Income Distribution on Divorce in Australia (Prentice‐Hall for the Australian Institute of Family Studies, 1986) 259, 264.
93 Chapter Two – Historical Context but gender gaps in education, salaries, employment opportunities and a lack of affordable childcare meant that these families often relied heavily on social security. A key question in reforming child maintenance concerned who would be liable to support a child. This question, and the various reform options was considered by a national inquiry into Maintenance in 1984, and was followed by the appointment in 1986 of a Cabinet Sub‐Committee.223 It is clear from discussion of blood tests in the Cabinet Sub‐committee report, that the Hawke Government’s initial proposals for a Child Support regime were centred on a definition of ‘parent’ which assumed a genetic link.224 However, in its 1986 Report, the Sub‐committee threw open for discussion the question of ‘whether a biological parent should be liable to pay child support where he or she has no social connection with the child, that is no ongoing contact and interaction’ as well as ‘what powers should the Child Support Agency or the court have to require medical tests to establish parentage’.225 The Sub‐committee considered three alternative mechanisms for establishing paternity where a presumption of parentage arises but the man denies parentage.226 The first option was to empower the Child Support Agency to require blood tests and to treat any refusal to submit to testing as entitling the Agency to infer that a test would be likely to prove paternity. This option was dismissed as creating ‘overly intrusive’ powers for a bureaucratic agency. The second option considered was to leave it open to the mother or agency to apply to the Family Court to determine paternity. This was seen as throwing a heavy evidentiary burden on the mother to bring proceedings and prove paternity. The third, and eventually implemented option was to allow the Registrar ‘to treat certain evidence as conclusive proof of paternity’, putting the burden on putative fathers to disprove genetic parentage via blood tests or other means.227 What was ‘conclusive proof’ for administrative assessment of child support, would not
223 Attorney‐General's Department, A Maintenance Agency for Australia: The Report of the National Maintenance Inquiry, (Australian Government Publishing Service, 1984); Cabinet Subcommittee on Maintenance, Parliament of Australia, Child Support ‐ A Discussion On Child Maintenance (1986). 224 Cabinet Subcommittee on Maintenance, above n 214, 38. 225 Ibid 39. 226 Ibid 38. 227 Ibid.
94 Chapter Two – Historical Context necessarily be conclusive for a court determining legal parentage – creating a zone of uncertainty between the presumptions of parentage and a biogenetic common law definition of ‘parent’. Each of these mechanisms presume, first, that a determination of genetic paternity is sufficient to answer the question of legal parentage, and second, that any dispute regarding paternity would reach the courts soon after the administrative assessment of child support, with little time lag between the administrative and judicial determinations. The Sub‐Committee also discussed the situation where a mother ‘is not sure of the father’s exact identity, but nominates several men’.228 Here, the Sub‐committee’s proposed solution was that:
In this situation the onus should perhaps be upon the mother to provide the agency with evidence which is sufficient to raise a presumption in relation to one man alone. If she is unable to, then it would be up to her to institute her own court proceedings against the men for a declaration of paternity against one of them. She could then return to the agency with this declaration and the levy would be imposed accordingly.229
This suggests that women would be encouraged to make a ‘best guess’. The Sub‐ Committee did not seem to have contemplated what might happen if the mother’s guess was wrong – or if the evidence supporting a presumption of parentage was sufficient to administratively establish as a legal parent a person (eg, her husband, or de facto partner) who was not a genetic father of the child.230 Here, the Sub‐Committee’s focus was on choosing someone to pay the child support on the presumption that the mother herself knew whose sperm in fact caused her pregnancy at a particular time – leaving it open for the man to challenge the Registrar’s decision via court proceedings.
228Cabinet Subcommittee on Maintenance, above n 214, 39. 229 Ibid 39. 230 The peak welfare body, the Australian Council of Social Service (‘ACOSS’) warned, however, that requiring the custodial parent to provide information about the identity and location of the other parent ‘may lead to false identifications’. Tess Ridge, 'Supporting Children? The Impact of Child Support Policies on Children's Wellbeing in the UK and Australia' (2005) 43 Journal of Social Policy 121; Australian Council of Social Services, Supporting Children: ACOSS Submission to the Cabinet Sub Committee on Child Maintenance, Report No 2 (1986) 11.
95 Chapter Two – Historical Context
Again, what was not considered was the prospect of any significant time‐lag between the administrative determination of child support liability and a judicial decision overturning paternity. In a system in which the government wanted to ensure that it could allocate the social security costs of any given child to private individuals wherever possible, genetic connection and the notion of individual parental responsibility for procreation offered a new bright line rule. The Sub‐Committee posed the question of ‘whether a biological parent should be liable to pay child support where he or she has no social connection with the child, that is, no ongoing contact and interaction’.231 It did hint, though, at its own answer to the question:
Some would argue that the child’s right to an adequate standard of living should be paramount. A parent should not be able to revoke unilaterally his or her obligations to the child and shift the burden onto the taxpayer because he or she decides to have nothing to do with the child. On the other hand, the parent may not have wanted the child in the first place or may have decided not to be involved in the child’s life for reasons which he or she considered to be in the child’s, or the custodial parent’s interests.232
When the Child Support Consultative Group considered the question further in 1988, in preparation for the drafting of the CSS legislation, it followed the Sub‐ Committee’s emphasis on a biogenetic definition of ‘parent’, but also specifically included ‘adoptive or technological parents’.233 The Group argued that consistency with ‘existing legal guidelines for the determination of the question of parentage’, required ‘liability under the formula being imposed on biological, adoptive or technological parents; and secondary liability being imposed on step‐parents at the discretion of the
231 Cabinet Subcommittee on Maintenance, above n 214, 39. 232 Ibid. 233 Child Support Consultative Group, Child Support Formula for Australia (Australian Government Publishing Service, 1988), 45.
96 Chapter Two – Historical Context court’.234 The Consultative Group seemed to contemplate a potential gap between who could be liable as a parent under the CSA and who was a legal parent:
It is not central to the design of the formula or administrative assessment to determine how the courts should determine parentage. However it is central to the effective operation of a system of administrative assessment that there be a procedure for determination of parentage by the Child Support Agency.235
It did not address, however, what might occur if it was subsequently discovered that someone with a CSA liability was not in fact a legal parent. Subsequent treatment of ‘parentage’ as a natural fact to be discovered and therefore requiring a consistent determination between legal parentage for the diverse purposes of the FLA and the CSS had the effect of closing any potential gap. The Consultative Group recommended a system that
allows the Child Support Agency, in cases where there is no dispute between the parties, to determine parentage on the facts that form the basis of presumptions of paternity. Presumptions of paternity are not proof of paternity, and it is still open for the alleged father to go to court to dispute paternity. The onus is on the mother to prove paternity.236
This meant that until there was a dispute between the parties, the presumption of parentage was sufficient to form the basis for a determination of parentage. The sentiment raised by the Cabinet Sub‐Committee – that genetic parents must not be allowed to ‘revoke’ their obligations to children – was shared by the Opposition at the time. Then Senator Bronwyn Bishop opined:
Clearly, the unilateral abrogation of responsibility of one parent toward children that have been jointly brought into the world is no longer acceptable, and that is the very strong message that comes through from the enacting of this legislation.237
234 Ibid. 235 Ibid. 236 Ibid. 237 Commonwealth Parliament, Parliamentary Debates, Senate, 6 September 1989, 1115 (Bronwyn Bishop).
97 Chapter Two – Historical Context
Senator Bishop also took issue with the term ‘sole parent’:
The really sad thing is that the majority of these children are the children of so‐ called sole parents, although that term does worry me somewhat because no child actually comes into this world with a sole parent. It takes two people to bring any child into this world, and, unfortunately, under the law as it has been presently, it has been possible for one parent simply to abrogate the responsibility he or she has towards the children that they, together, brought into the world.238
In this quest for a broad‐based solution to burgeoning welfare payments, diversity in family form was compressed into one bio‐economic norm – the private, heterosexual nuclear family. As Graycar and Earle pointed out, this focus on biological parentage ‘ignores changes in reproduction methods and household formation which have increased the importance of “social parenting”’.239 A number of stakeholders (particularly the Law Council of Australia) expressed concern about the ‘lack of due consideration to individual cases’240 which would inevitably result from administrative determinations according to a formula. Some of this resistance undoubtedly stemmed from family lawyers concerned about how a shift from court assessment of maintenance to administrative child support assessment might affect their practices. The Cabinet Sub‐Committee responded to this concern in regard to its use of a standardised formula to calculate the amount of maintenance payable, arguing that ‘a standardised formula would ensure that maintenance payments better reflect the non‐custodial parent’s capacity to pay’.241 The lack of individual consideration regarding determination of the legal parents of a child was not addressed. At the time of the introduction of the CSS, the government’s policy objective was to ensure that parents continued to contribute towards children in the context of post‐ relationship breakdown where the parents and children had shared a family household and the commitment that entailed. This quickly widened out to cover biological parents
238 Ibid 1114. 239 Reg Graycar and Jenny Earle, 'A New Dependence' (1987) (February) Australian Society 37, 38. 240 Family Law Council, Report on Maintenance Assessment and Collection (1985); Holub, above n 205, 22. 241 Child Support Consultative Group, Child Support Formula for Australia (Australian Government Publishing Service, 1988), 45.
98 Chapter Two – Historical Context who had never lived together, and in some cases, had only the very briefest of encounters. Suddenly the responsibilities of legal parentage were to be enforced by the state against people who had no social parenting relationship with the child, and who formed no part of the child’s functional family. This emphasis on liability regardless of marriage, commitment to parent, or even knowledge that an encounter had resulted in a child’s birth, blurred the line between compulsory obligations attendant on legal fatherhood, and compulsory fatherhood (in the sense of requiring every child to have a father). To have the desired economic impact of shifting the cost of children from the welfare state to non‐resident parents wherever possible, the new ethos depended on its universality. As Parkinson notes, the ‘economic fatherhood’ created by child support liability sometimes ‘created artificial families’ in the sense that some people who were treated as a ‘private’ economic family unit within the CSS had never lived as family.242 Where the CSS sought to enforce continuing obligations for non‐marital and separated families, it in fact extended to people who would never define one another as ‘family’ – linking genetic parents of a child who had never shared a common household and had never committed to joint responsibilities of child‐rearing.
These families were not born out of mutual intention and consent, other than the [assumed] consent to sexual intercourse, but were formed at the behest of the state to ensure that children had adequate means of support and that the burden on governments of supporting single mothers would be reduced.243
Technically, the introduction of the CSS did not change legal parentage, it only provided new administrative machinery to implement the financial obligations of parents (married and unmarried) to their biogenetic children. Yet that administrative machinery fundamentally altered the way in which legal parentage was determined for children, and in which the legal obligations of parents were understood and enforced. It moved determinations of legal parentage from a judicial sphere to an administrative one, and helped push understandings of legal parentage in the direction of a simple bright line rule based on presumed or proven biogenetic parentage. In applying this
242 Parkinson, Family Law and the Indissolubility of Parenthood, above n 218, 215. 243 Ibid 215.
99 Chapter Two – Historical Context bright line rule, there was no space for nuanced consideration of ‘important features of fatherhood as a caring and enduring relationship’ which had been discussed in cases such as Re CN & MN.244 The state had always held an interest in enforcing the economic responsibilities of parents, but those responsibilities had primarily been viewed as private obligations. With the introduction of the CSS, these became quasi‐public obligations which the state enforced via its own institutions – using the tax and welfare systems to enforce the obligation (primarily on fathers) to pay support, and using the welfare system to enforce the obligation on mothers to accurately disclose the genetic father of their child. The abolition of illegitimacy created the possibility of a legal father for every child. The CSS built on this possibility by enlisting the machinery of the tax and welfare systems and intermeshing them with its own administrative processes to shape the biogenetic parents of each child in the image of husband and wife, and to carry out on their behalf the economic transfers associated with that norm. These were ostensibly ‘private’ transfers, but carried out via the public mechanisms of the state.
B Linking legal parentage and economic responsibility for children via ‘true’ parentage
Where the abolition of illegitimacy debates raised unanswered questions about how legal fatherhood would be determined in the absence of marriage,245 the Child Support System introduced in the late 1980s functioned from a normative presumption about family structure – imagining that ‘all children are born into an uniformly constituted family which survives in some form or another, even after the relationship between the adult parties has broken down’.246 The rhetoric justifying the system may have centred on the ‘poverty of many children of separated parents’,247 but the
244 In Re CN and MG (infants) (1976) 9 ALR 666 (Muirhead J). 245 See, eg, Victoria, Parliamentary Debates, Legislative Council, 16 October 1974, 2501 (Mr Galbally). 246 Graycar, above n 230, 86. 247 Cabinet Subcommittee on Maintenance, above n 214, 6.
100 Chapter Two – Historical Context imagined solution was to ‘approximate the situation where parents live together by guaranteeing the child an appropriate share in his or her parents’ income’.248 In contrast, many community organisations (including the Australian Council of Social Service, the Women’s Electoral Lobby and the Brotherhood of St Laurence249) had recommended instead the state funded option of an ‘advance maintenance guarantee’ – an amount which would be paid in respect of all sole parent families, with the costs to be passed on to eligible non‐resident parents where relevant and possible.250 For example, the ACOSS submission to the Sub‐Committee on Maintenance supported the introduction of the CSS but noted that ‘the most serious omission in the proposed system is the absence of any proposal for a guaranteed minimum payment for all children’.251 Similarly, the Child Support Consultative Group remarked that ‘complete reform will not be achieved until a guaranteed minimum maintenance payment is established’ however the Group could not consider this proposal in detail as it was outside its terms of reference.252 This limitation on the terms of reference reflected a broader lack of political commitment to use the introduction of the CSS to create a guaranteed minimum maintenance payment for all children, regardless of whether or not they had identifiable, living and solvent fathers.253 Unlike the rest of the CSS, an advance maintenance guarantee was solely directed at poverty alleviation, with no additional
248 Child Support Consultative Group, Child Support Formula for Australia (Australian Government Publishing Service, 1988) 79. 249 Alison McClelland and Jenny Trethewey, Child Support: Directions and Conditions for Change ‐ A Submission Paper on the Report "Child Support" (The Brotherhood of St Laurence, 1987) 2. 250 Graycar, above n 230, 83. 251 Australian Council of Social Services, Supporting Children: ACOSS Submission to the Cabinet Sub Committee on Child Maintenance, Report No 2 (1986) 3. 252 Child Support Consultative Group, Child Support Formula for Australia (Australian Government Publishing Service, 1988) 7. 253 Rebecca Bailey‐Harris, 'Child Support: Is the Right the Wrong One ‐ A Comment on Parker' (1992) 6 International Journal of Law & Family, 169, 171.
101 Chapter Two – Historical Context revenue‐recovery upside, and once the CSS was implemented, debate about an advance maintenance guarantee petered out. When we compare the policy debates surrounding the abolition of illegitimacy in the late 1960s‐early 1970s and those preceding the introduction of the CSS in the 1980s, a common thread is the aspiration for equality among children, regardless of family form. In the earlier debates, it was an aspiration of equal status between nuptial and ex‐nuptial children, with some observing that many of the disabilities of illegitimacy were social and economic rather than legal.254 The child support conversation took this aspiration a step further – using the tax system to try to recreate the imagined private nuclear family in economic terms and to eliminate the differences between couple and single parent families. Here, finding a father for every child was a way of privatising economic responsibility for children. This enabled the burgeoning welfare state to shift costs to individuals by matching economic need and economic resources within a single unit, even if the way they lived and related to one another bore zero resemblance to lived families as social and cultural units. The rhetoric of the state retreating in favour of individual responsibilities contrasted starkly with the intimate state interventions required in order to define ‘parent’ and ‘child’ on the basis of heterosexual conception. After illegitimacy was abolished and the supporting parent’s pension introduced, but before the CSS arrived, there was a brief interlude where it seemed there might be some political consensus that relationship breakdown and sole parenting were part of the ‘vicissitudes of life’.255 Supporting parents in poverty briefly fell into the same category as ‘unemployment, illness and vehicle and work accidents’ for which the broader community was willing to share in responsibility.256 It became quickly apparent, however, that any community responsibility was only for a minimum level of support, leaving many women and children below the poverty line. For example, in 1982, 44 per cent of children living in families ‘headed by a female’ were living in poverty, triple the rate among children living in families ‘headed by a male’.257 State‐supported
254 Sackville and Lanteri, above n 6; Neave, above n 87. 255 Edwards, Harper and Harrison, above n 207, 18. 256 Ibid. 257 Ann Harding et al, 'Social Policy Matters: The Changing Face of Child Poverty in Australia 1982 to 1997‐ 98' (Paper presented at the 7th Australian Institute of Family Studies Conference, Sydney, 26 July 2000)
102 Chapter Two – Historical Context autonomous motherhood in a society in which paid work was often incompatible with child rearing responsibilities,258 and childcare was often unavailable or unaffordable, quickly became very expensive.
IV CONCLUSION
This chapter has argued that the bundling of origins information, default parental responsibility, legal kinship identity and economic support into the one concept of legal parentage occurred primarily as a result of two key historical law reforms. The abolition of illegitimacy in the 1970s collapsed legal (married) and ‘natural’ (biogenetic but ex‐ nuptial) fatherhood into one – bundling origins information into the existing package of legal parentage providing for the child’s legal kinship identity and default parental responsibility. Economic support was technically part of the package, but was more often honoured in the breach, particularly where the genetic father was not married to the mother. In the late 1980s, the CSS was introduced to close this gap, and worked to tightly bundle in economic support as part of legal parentage.259 Accompanying social security reforms were designed to pressure mothers to identify genetic fathers and to include them on birth certificates, therefore binding together origins information and economic support – and in the process, affecting children’s legal kinship identity and giving genetic fathers default parental responsibility. Prior to the abolition of illegitimacy, there were legal married fathers, whose legal and economic responsibility for children coincided with presumed genetic connection, and in most cases, social fathering; and then there were ‘natural’ or ‘putative’ fathers, who had no legal connection with the child, but could be held economically responsible. As the legal structure of illegitimacy was gradually
15. It is not clear how the study determined who was the ‘head’ of the family where two people were parenting together. While this rate of poverty dropped substantially after the introduction of the child support scheme (down to 20% of families ‘headed by a female’ – compared to 11% of families headed by a male in 1995‐6), the direct effect of child support on child poverty was calculated by the study authors as only 1.2%. 258 As Graycar points out, most of the women heading single parent families in the 70s and 80s had been ‘trained not to participate in the workforce’. Graycar, above n 230, 91. 259 Despite this reform, many women still struggle to enforce child support payments, even via the Child Support Agency.
103 Chapter Two – Historical Context disassembled, these two forms merged into one – a lowest common denominator of fatherhood that demanded genetic connection as the basis for economic responsibility, but little else. As the categories of legal (married) fathers and ‘natural’ fathers were flattened into a unified model of fatherhood as a (primarily biological) fact rather than a legal status, what was squeezed out was the possibility of addressing the relational context – the reality of children’s lives. Yet, despite genetic paternity becoming the ultimate arbiter of legal fatherhood, the presumptions of parentage were nonetheless based on social factors, such as whether the ‘father’ was married to or in a de facto relationship with the mother, or whether he signed the birth certificate or formally acknowledged the child. This mismatch – between socially‐determined presumptions and the biogenetic fact presumed to underlie them – created a new vein of legal uncertainty and vulnerability, particularly for the small percentage of children whose paternity was disputed. In creating a universal category of legal fatherhood anchored to genetic fatherhood, this development also locked together functions which had previously been served independently. For example, ‘natural fatherhood’ had previously been a basis for economic support obligations regarding children, but did not create default parental responsibility (at that time ‘custody’ or ‘authority’), nor make the child legal kin with the ‘natural father’ and his broader family in terms of name or inheritance. The abolition of illegitimacy was also linked to the removal of evidentiary protections around the marital presumption of legitimacy – contributing to expectations that legal fatherhood also served to provide information about the child’s genetic origins. In combination, the abolition of illegitimacy and introduction of the CSS progressively fostered a minimalist definition of the father‐child relationship as satisfied by genetic connection with a child alone. Prior to the abolition of illegitimacy, legal fatherhood often coincided with social fatherhood because, having consensually entered into marriage with the child’s mother, the legal father was likely to have some involvement with the child, albeit often limited by the duty to provide financially, and therefore to be often absent due to employment.260 As noted above, that did not
260 Richard Collier, 'A Hard Time to Be A Father?: Reassessing the Relationship Between Law, Policy, and Family (Practices)' (2001) 28(4) Journal of Law and Society 520..
104 Chapter Two – Historical Context preclude a degree of potential financial responsibility attaching to genetic fatherhood alone, though the difficulties of enforcement meant that this was often discretionary. As Sackville and Lanteri noted, the economic duties of genetic fatherhood were imposed irrespective of any intention to parent or financial commitment to the child:
In other words a duty of support is imposed upon the father, despite the fact that he may not have intended the child to be born or and has not, unlike a married man, undertaken the support of the child. The duty is imposed because he has engaged in conduct which could result in the birth of an infant who obviously will be dependent upon someone, and as between the father (or perhaps possible fathers) and the rest of the world the ‘responsibility’ should fall upon him.261
With the abolition of illegitimacy, such genetic fathers could potentially be established as legal fathers, and with the introduction of the CSS, administrative mechanisms were introduced designed to ensure their establishment as legal fathers and enforcement of their child support liability in the majority of cases. What was lost in this progression was any ‘account of the important differences between notions of biological and social parenting’,262 or any notion that the distinct functions of providing genetic origins information, allocating default parental responsibility, economic obligations and legal kinship could be served by distinct rules or definitions of ‘parent’. Rather, a naturalist and essentialist notion of parentage was emerging which locked together all of these disparate functions. The abolition of illegitimacy drew on the liberal idea of treating all children equally on the basis of their equal humanity. This discourse was powerful in terms of the idea that individuals are worthy of equal respect regardless of the circumstances of their birth. Yet the abolition of illegitimacy went further than this – it attempted to abolish not just differential treatment of marital and non‐marital children, but indeed the legal difference between them – the status of having only a legal mother. Where the Status of Children Acts discursively abolished the legally fatherless child, the CSS attempted to abolish the economically fatherless child and set up simple administrative systems for establishing genetic fathers as legal fathers outside of
261 Sackville and Lantieri, above n 6, 13. 262 Graycar, above n 230, 87.
105 Chapter Two – Historical Context marriage. Here, we see equality logic working backwards – so that a drive to treat children equally justified an assumption that all families were identically constituted – conforming to a unified nuclear model of the ‘eternal biological family’ and discursively eliminating the possibility of single parent families.263 This was the trade‐off: in order to remove the legal disabilities attaching to illegitimacy, children of single mothers had to be legally reconnected with their genetic fathers. Likewise, in order to avoid poverty (and in order for the state to avoid economic responsibility for such children), children of single mothers had to be economically connected with their genetic fathers – bundling together the disparate functions regarding origins information, parental responsibility, economic obligations and legal kinship into one universalist model of legal parentage.
263 Sevenhuijsen, above n 2, 336.
106 Chapter Three – Current Law
CHAPTER THREE – A simple story for a complex law
This chapter examines the current statutory and common law framework governing legal parentage. It picks up from Chapter Two’s analysis of the merging of legal and ‘natural’ fatherhood after the abolition of illegitimacy and argues that this bundling together of functions in the current law destabilises the legal parentage of misattributed paternity children in new ways. While the rhetoric surrounding legal parentage assumed a simple correspondence between legal and ‘natural’ (ie biogenetic) parentage, this chapter argues that the structure of legal parentage as it has developed since the abolition of illegitimacy is far more complex. This chapter sets out the relationship between the common law definition of ‘parent’ and the statutory framework for legal parentage. It unpacks the complexities of the statutory definitions and presumptions, the complexities hidden behind the common law ‘borne or begotten’ definition of parent, as well as the tensions between these statutory and common law definitions of ‘parent’. This is exemplified by the ongoing academic and judicial debate over whether s 60H of the Family Law Act 1975 (Cth) (‘FLA’) exclusively defines parentage for Assisted Reproductive Treatment (‘ART’)‐ conceived children or merely enlarges the categories of who may be a parent. It also looks at the tension between statutory presumptions of parentage which draw on social facts (such as who was in a relationship with the mother at the likely time of conception) and the approach taken in cases where parentage is disputed using the common law definition of parent. It argues that, at odds with the simple story about legal parentage being a natural fact, bundling together the four functions within the mechanism of legal parentage (origins information, default legal parentage, legal kinship identity and economic responsibility) makes parentage law extraordinarily complex. Further, it closes down any
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Chapter Three – Current Law space for the court to consider the best interests of the child or the child’s perspective on their own legal parentage.
I WHO IS A LEGAL PARENT?
How does a court go about determining who is a ‘parent’ of a child? Legal parentage in Australia is governed by interlinked legislative State or Territory and Federal statutory regimes, but because none contain a comprehensive definition of parent, common law plays an important role in identifying who is a legal parent in any given case. As Ryan J noted in Ellison & Karnchanit, ‘children may variously be deemed, presumed or declared the child of a person’ – though sometimes different processes may lead to different conclusions as to parentage.1 Ryan J and a number of other judges use the term ‘deemed’ when a child’s parentage is decided via the exceptions for adoption or ART‐conception.2 Each of these processes works from the assumption that legal parentage is a naturally‐existing fact to be discovered by law or deemed otherwise by way of a legal fiction. This assumed distinction between ‘natural’ and ‘deemed’ legal parents is unpicked in Chapter Five. For the purposes of giving an overview of the current law, however, this chapter builds on Ryan J’s taxonomy to look at how statute defines and presumes legal parentage, how judges interpret ‘parent’, and how law regulates parentage evidence, including genetic parentage testing. Finally, the chapter considers how judges use these definitions, presumptions, interpretations and evidence to make determinations and declarations of legal parentage. For each process, the analysis starts by sketching out the statutory framework at both a federal and state or territory level. It then examines how that framework relies
1 Ellison & Karnchanit [2012] FamCA 602 [34]. 2 See, eg, Tobin v Tobin [1999] FamCA 446 (13 May 1999) [39] (Finn, Kay and Chisholm JJ); Re Mark: An application relating to parental responsibility (2003) 179 FLR 248 [37] (Brown J); B & M [2003] FMCAfam 113 [43]; BM & DA [2007] FMCAfam 770 [238] (Henderson FM); Bateman & Kavan [2014] FCCA 2521 [43] (Harman J).
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Chapter Three – Current Law on common law interpretations and the tensions between common law definitions and statutory exceptions as they play out in the disputed paternity case study judgments.
A Defining, presuming and deeming legal parentage
As identified by the Family Law Council in its 2013 Report on Parentage and the Family Law Act, legal parentage for the purposes of family law in Australia is affected by ‘uncertainty in the law and inconsistencies at both the state/territory and federal levels and between different Commonwealth agencies’.3 This patchwork and piecemeal state of parentage law, and the resulting confusion for families has led the Family Law Council to recommend the introduction of a federal Status of Children Act designed to consolidate and simplify legal parentage, though no legislation to implement this recommendation has been considered by the Federal government or Council of Australia Attorneys General as yet.4
1 Statutory framework
At a State or Territory level, the Status of Children Acts (‘SoC Acts’) set out a number of rebuttable and irrebuttable presumptions regarding legal parentage and give State or Territory Supreme Courts jurisdiction to hear parentage disputes and to make declarations regarding parentage.5 The Births Deaths and Marriages Registration Acts then mirror parentage under the SoC Acts, defining a person as a parent, and eligible to be registered on a child’s birth certificate as such if they are presumed to be a parent under the relevant SoC Act.6 Then, at a Federal level, the FLA (Cth) and the Child Support (Assessment) Act 1989 (Cth) (‘CSAA’) echo the presumptions of parentage and give the family courts jurisdiction to make orders regarding collection of parentage evidence
3 Family Law Council, Report on Parentage and the Family Law Act (2013) vii. 4 Ibid xvi. 5 Status of Children Act 1974 (Vic), Status of Children Act 1996 (NSW), Status of Children Act 1978 (Qld), Status of Children Act 1974 (Tas); Family Relationships Act 1975 (SA), Status of Children Act 1978 (NT), Parentage Act 2004 (ACT). 6 Births, Deaths and Marriages Registration Act 1996 (Vic); Births, Deaths and Marriages Registration Act 1995 (NSW); Births, Deaths and Marriages Registration Act 2003 (Qld); Births, Deaths and Marriages Registration Act 1996 (SA); Births, Deaths and Marriages Registration Act 1998 (WA); Births, Deaths and Marriages Registration Act 1999 (Tas); Births, Deaths and Marriages Registration Act 1997 (ACT); Births, Deaths and Marriages Registration Act (NT).
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Chapter Three – Current Law
(including genetic parentage testing) and to make declarations of parentage based on the evidence and presumptions.7 While the State and Territory statutes are not identical, they broadly echo one another. In this discussion, I use the relevant Victorian legislation, the Status of Children Act 1974 (‘SoC Act’) and the Births, Deaths and Marriages Registration Act 1996 (‘BDMR Act’) as my case study. These two Acts regulate legal parentage in quite different ways. The BDMR Act provides for the administrative registration of births, based on the presumptions set out in the SoC Act, while the SoC Act sets out who can be presumed to be a parent and allows for judicial hearing of parentage evidence, and the making of declarations of parentage. Neither the BDMR nor SoC Acts conclusively define ‘parent’:
Table 1: Definitions of ‘parent’ in BDMR and SoC Acts Births Deaths and Marriages Status of Children Act 1974 (Vic) Registration Act 1996 (Vic)
Section 4 Interpretation No definition of ‘parent’, but s 2 says
‘parent’ means a person who is ‘non‐birth mother’ means a woman presumed under the Status of Children who is a parent of a child by operation Act 1974 to be the mother, father of a presumption in Part III. (See Table or parent of a child… 2)
7 Family Law Act 1975 (Cth) Part VII – Children, Div 12, Subdivision E – Parentage Evidence; Child Support (Assessment) Act 1989 (Cth) ss 106A, 107. There are other pieces of legislation which define ‘parent’ and/or ‘child’ for other specific purposes – such as citizenship or social security – but this analysis is confined to the core legal parentage statutes set out above. For further detail on other statutes, see Appendix D: Table of Significant Commonwealth Legislation in relation to who are the parents of a child; Family Law Council, Report on Parentage and the Family Law Act (2013) 156.
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Table 2 below sets out the presumptions of parentage within the FLA, CSAA and SoC Act:
Table 2: Presumptions of Parentage Presumptions of Parentage FLA CSAA Status of Children Act (Vic)
Presumptions of parentage arising from marriage s 69P s 29(2)(a) s 5
(including annulled and separated marriages) (f) (g)
Presumption of paternity arising from s 69Q s 29(2)(h) s 10A cohabitation
Presumptions of parentage arising from s 69R s 29(2)(b) s 8(1) registration of birth
Presumption of parentage arising from s 69T s 29(2)(d) s 8(2) acknowledgments of parentage.
Presumption of parentage arising from findings s 69S s 29(2)(c) s 8(3), (5)‐(7) of courts (irrebuttable)
Presumptions of parentage arising out of use s 60H (deems s 29(2)(i) ss 10‐16 of procedures as a result of which a woman rather than (Refers to ss presumes) 60H & 60HB becomes pregnant. of FLA)
When we examine these definitions and presumptions regarding parentage together, it becomes apparent that there is some circularity. The BDMR Act defines a ‘parent’ as a person presumed to be a parent under the SoC Act, and the SoC Act presumes that a person named on a birth certificate as a parent is a parent of that child.8 The term ‘presumption’ suggests that these default starting points can be rebutted by evidence. Some of the presumptions, however, (those relating to findings of courts and children conceived via ART and approved surrogacy arrangements) are
8 Status of Children Act 1974 (Vic) s 8(1).
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Chapter Three – Current Law irrebuttable, and therefore operate as exceptions to the common law definition of ‘parent’. The remaining presumptions are rebuttable on the balance of probabilities.9 Adoptive parents sit outside the presumption system because they are specifically defined as the parents of their adopted child under s 5 of the FLA and under State and Territory Adoption Acts.10 Therefore, an adoption order is conclusive evidence of legal parentage. In examining how legal parentage is regulated under the Commonwealth statutes, it is helpful to examine the CSAA and the FLA side by side, as small differences in wording have been interpreted by judges as having significant effects on who is and is not a legal parent. At a Commonwealth level, both the FLA and the CSAA specify the meaning of ‘parent’ in particular contexts (adoption, assisted conception and some surrogacy arrangements), but leave the definition open for any other contexts (see Table 3). This means that the interpretation of the word ‘parent’ more generally has been left
9 Family Law Act 1975 (Cth) s 69U; Farnell v Penhalluriack (No 2) [2008] VSC 214 (24 June 2008) [4]. 10 See, eg, Adoption Act 1984 (Vic) s 53.
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Chapter Three – Current Law to the courts. Judicial interpretation of the common law definition of parent is discussed in section 2 below.
Table 3: FLA and CSAA definitions of ‘parent’ Family Law Act 1975 Child Support (Assessment) Act 1989
Section 4 Interpretation Section 5 Interpretation – definitions
‘parent’ , when used in Part VII in relation ‘parent’: to a child who has been adopted, means (a) when used in relation to a child who an adoptive parent of the child. has been adopted‐‐means an adoptive parent of the child; and
(b) when used in relation to a child born Section 60H(1): (for example) because of the carrying out of an artificial …whether or not the child is biologically a conception procedure‐‐means a person child of the woman and of the other who is a parent of the child under section intended parent, for the purposes of this 60H of the Family Law Act 1975 ; and Act: (c) when used in relation to a child born (c) the child is the child of the woman because of a surrogacy arrangement‐‐ and of the other intended parent; and includes a person who is a parent of the child under section 60HB of the Family (d) if a person other than the woman Law Act 1975. and the other intended parent provided genetic material‐‐the child is not the child of that person.
In addition to the s 4 definition, the FLA also defines a child as ‘the child of a person’ if the person meets particular criteria under ss 60H and 60HB dealing with children conceived via ART or born via approved surrogacy arrangements. For example, s 60H(1) ensures that the birth mother and her partner are both legal parents of a child born via assisted conception as long as: they were married or in a de facto relationship at the time of the ‘artificial conception procedure’,
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they both consented to the procedure (consent is presumed but can be rebutted on the balance of probabilities); and
any other person providing genetic material consented to it being used in such a procedure. Fehlberg et al remark about the section:
Section 60H has a complex and repetitive structure: subsection (1) refers to a woman who is married or in a de facto relationship and determines whether the child is a child of the woman and her partner by reference to both the wording of the Act and prescription of state law; subsection (2) refers to a woman and determines whether the child is the child of that woman; and subsection (3) refers to a woman and whether the child is the child of a man… In a piece of particularly poor drafting, the 2008 amendment explicitly severing parental status of a gamete provider was inserted into subsection (1) rather than included as an overarching provision. Thus, despite the fact that subsections (2) and (3) only operate by reference to state law (which does conclusively sever a gamete provider’s legal status) it is technically possible to characterise the severance as not applicable to single women, with the result that a sperm donor retains parental status in the FLA in that limited circumstance.11
These statutory exceptions (scattered across ss 4, 60H, 60HA, 60HB and 69S) define non‐genetic parents as legal parents of adopted, ART‐conceived children and children born via authorised surrogacy arrangements. The dividing line deciding which children come within the common law definition and which under the exceptions depends, of course, on statutory interpretation, but broadly, it is the fact of adoption in the case of adopted children, and the circumstances of conception for all other children. This has generally meant that where a child is conceived via assisted reproductive treatment (including self‐insemination by the woman), the statutory exceptions for assisted reproductive treatment apply, and where a child is conceived via heterosex, the common law definition applies. For the vast majority of children, however, their parentage is prima facie presumed from social facts.
11 Belinda Fehlberg et al, Australian Family Law: The Contemporary Context (Oxford University Press, 2nd ed, 2015) 121‐122.
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These presumptions (mostly consistent across the Commonwealth FLA and CSAA and the State/Territory SoC Acts and BDMR Acts12), allow legal parentage to be presumptively determined from social facts, such as who the mother was married to or living with at the likely time of the child’s conception, or who signed the child’s birth certificate or signed an acknowledgement of parentage.13 Unless a child’s parentage is challenged and evidence is brought sufficient to rebut the presumption, a child’s presumed parentage stands as their legal parentage for all purposes. Whether evidence is sufficient to rebut these presumptions depends of course on judicial interpretations of the term ‘parent’. As explored further in Chapter Five, these presumptions draw their justification from what Fiona Kelly calls the ‘rhetoric of biology’ – the view that a man who is or was married to or cohabiting with a child’s mother or is named in the birth certificate of her child probably is or should be the biogenetic father.14 Yet the presumptions are effective to decide legal parentage even if there is no biogenetic connection between father and child, unless the relevant presumption is rebutted by evidence to the contrary. For example, if a child is born to a woman while she is married to a man, he will be the legal father unless and until it is proved on the balance of that he is not ‘the father’. How ‘the father’ is interpreted by the court is discussed below. While the presumptions are – in judicial discourse – only evidentiary tools, they also create ‘default’ determinations of parentage for the majority of families where legal parentage is not challenged. If, however, evidence is brought to disrupt the presumptions, the court may make a declaration that someone is not a parent.
2 Common law definition of ‘parent’
As recently noted by Cleary J, the ‘definition’ of ‘parent’ in the FLA (which limits the meaning of ‘parent’ to adoptive parents when the matter considers an adopted
12 See, eg, Status of Children Act 1974 (Vic) ss 5, 10C, 10D, 10E, 13‐16, 22, 37‐39; Children (Equality of Status) 1976 (NSW), Status of Children Act 1978 (Qld), Status of Children Act 1974 (Tas), Family Relationships Act 1975 (SA), Status of Children Act 1978 (NT). 13 See Child Support (Assessment) Act 1989 (Cth) s 29(2); Family Law Act 1975 (Cth) 1975 ss 69P‐ 69U. 14 Fiona Kelly, 'Producing Paternity: The Role of Legal Fatherhood in Maintaining the Traditional Family' (2009) 21 Canadian Journal of Women and the Law 315, 316.
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Chapter Three – Current Law child) is ‘an amplification of common meaning not a definition’.15 Within family law, the common law meaning of ‘parent’ continues to be dominated by the definition laid out by the Full Court of the Family Court in Tobin v Tobin in 1999.16 There, the Full Court held that the natural meaning of the word ‘parent’ is ‘a person who has begotten or borne a child’.17 Tobin concerned a couple who had become ongoing foster carers of a child. After separation, the child remained living with the foster mother, who sought to claim child support from the foster father, arguing that he was the child’s parent for the purposes of the FLA. She urged the court to interpret ‘parent’ broadly, so as to include someone like the foster father who, although he was not a biological parent, ‘had assumed parental responsibilities by seeking and being granted orders as to guardianship and custody of the child’.18 The Full Court, however, interpreted wording within the FLA referring to ‘both parents’ to mean that Parliament intended to limit ‘parent’ to a maximum of two biogenetic progenitors of a child: ‘Section 60B speaks of the children having a right to know and be cared for by both their parents. It does not talk of the children having a right to know and be cared for by all of their parents’.19 The court also suggested that the FLA ‘recognises a clear delineation between a parent and a person significant to a child’s care, welfare and development’. It therefore found that the natural meaning of ‘parent’ in the context of the FLA was ‘the biological mother or father of the child and not a person who stands in loco parentis’.20 The flexibility afforded by s 65C (which enables ‘a person concerned with the care, welfare
15 Masson & Parsons [2017] FamCA 789 (3 October 2017) [44]. 16 Tobin v Tobin [1999] FamCA 446 (13 May 1999). 17 Ibid [43] (Finn, Kay and Chisholm JJ). The position of sperm donors was distinguished by Guest J in Re Patrick (2002) 28 Fam LR 635 on the basis that s 60H of the Family Law Act 1975 (Cth) exhaustively defined ‘parent’ where assisted conception processes were used. This seems to have been followed in BM & DA [2007] FMCAfam 770 (Henderson FM). While neither the Full Family Court nor the Oxford Dictionary went into any detail on the biblical etymology of the term ‘begotten’, there is some debate over whether ‘begotten’ necessarily or exclusively refers to a biological father‐child relationship. John V Dahms, 'The Johannine Use of Monogenes Reconsidered' (1983) 29 New Testament Studies 222. 18 Tobin v Tobin [1999] FamCA 446 (13 May 1999) [42]. 19 Ibid [44] (Finn, Kay and Chisholm JJ) emphasis in original. 20 Ibid [44].
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Chapter Three – Current Law or development of the child’ to apply for parenting orders) was therefore used to argue for a more rigid definition of ‘parent’. The Full Court’s use in Tobin of the dictionary definition of parent as ‘a person who has begotten or borne a child’ followed the Federal Court’s approach in the 1993 Hunt v Minister for Immigration decision on the meaning of ‘relative’ in the Migration Act 1958.21 Ms Hunt, a UK resident and citizen, sought an entry permit on compassionate grounds designed to allow a ‘remaining relative’ to migrate to Australia when they have immediate family in Australia, and live in a country where they have no other ‘overseas near relatives’.22 Ms Hunt’s mother, stepfather (whom she regarded as her father), sister, brother and their children were all Australian citizens or permanent residents. She was disqualified from an entry permit however, because she lived in the same country as her genetic father, though they had not been in contact for over twenty years. Ms Hunt appealed, seeking to claim that her stepfather filled the role of father to the exclusion of her biological father, and therefore her biological father did not count as an ‘overseas near relative’.23 Gummow J noted that the relevant sub‐regulations defined ‘parent’ to include an adoptive parent and a step‐parent – but not to the exclusion of someone who was a parent because they had ‘borne or begotten’ a child within the Oxford dictionary definition. Rather, the subregulations operated on the basis that ‘there may be more than one male parent’ – and therefore the inclusion of the stepfather as a parent did not necessarily exclude the biological father.24 As this result turned on an inclusive statutory definition of ‘parent’, there is some irony in the Family
21 Hunt v Minister for Immigration and Ethnic Affairs (1993) 41 FCR 380 cited in Tobin v Tobin [1999] FamCA 446 (13 May 1999) [42] (Finn Kay and Chisholm JJ). 22 Hunt v Minister for Immigration and Ethnic Affairs (1993) 41 FCR 380 [5]. 23 Ibid [24] (Gummow J). 24 Ibid [26] (Gummow J).
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Court’s use of Hunt to justify an interpretation of ‘parent’ as confined to someone who has borne or begotten a child. More recently, in Hudson v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court has held that the ordinary meaning of ‘parent’ in the Australian Citizenship Act 2007 (Cth) s 16(2) includes a misattributed father:
[I]n ordinary usage, the word ‘parent’ may be used without modifier to signify a genetic or non‐genetic connection with another: compare Black’s Law Dictionary (8th ed, 2004). Whilst often a person’s parents will in fact be biological parents, ordinary usage does not limit the meaning of parent in this way. Rather, the word ‘parent’ is used today to signify a social relationship to another person. Whether or not this has always been the case, this usage reflects a widespread contemporary awareness of families that include non‐biological parent‐child relationships.25
The Hudson judgment highlights the tension between legal parentage providing origins information and its task in describing a child’s legal kinship identity. The case concerned two plaintiffs (Neo Wang Hudson, aged two, and Vanessa McMullin, 22), each born overseas to a mother who did not hold Australian citizenship and each claiming citizenship by descent from their putative (but genetically misattributed) father. While the facts were different for each plaintiff, the same legal issue arose in each (hence the appeals were heard together): ‘Does ‘a parent of a person’ in s 16(2) of the Citizenship Act mean only a natural or biological parent of the person?’26 The Full Court discussed the ordinary meaning of ‘parent’ in depth, acknowledging that the definition changed with social change (and implicitly legal change, given the mention of illegitimacy):
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 ... Perhaps in the typical case, almost all the relevant considerations, whether biological, legal, or social, will point to the same persons as being the “parents” of a person. Typically, parentage is not just a matter of
25 Hudson v Minister for Immigration & Citizenship [2010] FCAFC 119 [48] (Moore, Kenny and Tracey JJ). 26 Ibid [1] (Moore, Kenny and Tracey JJ) emphasis in original.
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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.27
The Court in Hudson expressed concern that a purely genetic interpretation of the word ‘parent’ could mean that a person could be treated as an Australian citizen from birth, and understand themselves to be a citizen, only to discover years later due to a DNA test that they are not and never were a citizen.28 This is exactly the predicament many misattributed paternity children find themselves in, though the legal status which is destabilised is their legal parentage rather than their citizenship.29 Both are central to a person’s legal kinship identity and legal relationships. When Neo Wang Hudson’s citizenship application was re‐heard, the Tribunal was satisfied from the evidence that Mr Hudson (the Australian citizen) ‘was not, and is not actually involved in bringing up NWH [the child]’.30 Therefore, the Tribunal was ‘not satisfied that Mr H has established the requisite degree of connection as a parent with NWH [the child]’. This decision was upheld on appeal to the Federal Court and Full Federal Court.31 While the Full Federal Court in Hudson adopted an inclusive understanding of parentage as a social relationship based on connection, the Family Court has continued to treat the earlier ‘borne or begotten’ definition as conclusively defining ‘parent’ unless statute specifically includes others in that category. This lack of consistency means that a misattributed father may be a ‘parent’ in the Federal Court, but not in the Family Court.
3 Tensions between presumptions and the common law definition
The treatment of parentage as a fact to be discovered rather than a legal determination creates dissonance and instability in the interaction between presumptions of parentage and the common law ‘born or begotten’ definition. The presumptions and statutory exceptions for ART‐conceived and adopted children point
27 Ibid [129] (Moore, Kenny and Tracey JJ). 28 Ibid [79] (Moore, Kenny and Tracey JJ). 29 Though for some, like the plaintiffs in Hudson, both may be destabilised. Ibid. 30 Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23 (13 March 2013) [24]. 31 Hudson v Minister for Immigration & Citizenship [2011] FCA 1134 (7 October 2011); Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23 (13 March 2013) [24].
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Chapter Three – Current Law towards legal parentage as serving a social function of ensuring that a child’s legal kinship identity reflects the social reality of the family into which they are born. Meanwhile, the common law definition of ‘parent’ and the interpretation of ‘parentage’ in the testing and declaration provisions point towards a different function for legal parentage – of providing the child with information about their genetic origins. This tension between socially‐determined presumptions of parentage and a biogenetic common law definition of ‘parent’ creates instability for children of misattributed paternity, because genetic testing may occur years after the child’s legal parentage has been established via a presumption. In the intervening years, social parent‐child and kinship relationships develop, along with the child’s own kinship identity. These children’s legal parentage is unstable under the current law in a way that it was not before the abolition of illegitimacy. This unstable and inchoate system of law regarding paternity exposes all heterosexually conceived children to the risk of a modern‐day bastardization – retrospective change to their legal parentage, which may sever a child’s legal connections with someone they have known and relied on as parent, and with that the person’s extended family, and re‐write the child’s legal kinship identity. In order to ‘correct’ the origins information, and to undo the perceived injustice of a man financially supporting a non‐biogenetic child, the child may be stripped of their legal parentage if the matter comes to court. Some misattributed fathers go on to claim and obtain parenting orders – the extent to which this avenue moderates the vulnerability for children and their relationships created by the current approach to legal parentage is considered in Chapter Five.
4 Tensions between statutory and common law definitions
The ‘borne or begotten’ common law definition has been interpreted by some judges to overshadow even the statutory definitions of ‘parent’ under s 60H and relevant State and Territory legislation – particularly where a known donor has helped a single woman conceive.32 This ‘enlarging’ approach treats s 60H ‘as merely “adding”
32 See, eg, Groth & Banks [2013] FamCA 430 (Cronin J); Bateman & Kavan [2014] FCCA 2521 (Harman J); Masson & Parsons [2017] FamCA 789 (3 October 2017). For an in‐depth discussion of Groth, see Fiona Kelly, 'Parenting Outside the Normative Framework: Australia’s Single Mother By Choice' (2015) 29(2) Australian Journal of Family Law 90.
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Chapter Three – Current Law to the categories of natural and adoptive parent under the FLA’ – at odds with state parentage laws which sever the parental status of gamete donors.33 In contrast, other judges have treated s 60H ‘as exclusively defining the parents of assisted conception children in the FLA and reading it consistently with state parentage provisions (the 'exclusive/consistent' approach)’.34 Amendments to the FLA in 2008 clarified that any parental status of a gamete provider is severed unless they are the consenting partner of the woman who gives birth ‐ however it is less clear whether this severance applies when the person giving birth does not have a spouse or de facto partner. For example, in Groth & Banks, the applicant sought a declaration of parentage and parenting orders in a context where he had provided sperm to a single woman (his ex‐partner) who wanted to conceive, and had played some role in the child’s life. Mr Groth did not meet the s 60H requirements for legal parentage as he was not in a de facto relationship with the birthmother at the time of conception. Nonetheless, Cronin J held that Mr Groth was ‘logically’ the parent of the child because he was the ‘biological progenitor and one of two people who set about a course of conduct with the intention of fathering a child’.35 Likewise, in Bateman & Karvan, Mr Karvan was not in a de facto relationship with Ms Bateman at the time of conception via IVF, and was not a legal parent under s 60H. Harman J, however, felt he could not ignore the ‘simple scientific
33 Fehlberg, Belinda et al, Australian Family Law: The Contemporary Context (Oxford University Press, 2nd ed, 2015) 120‐124. See, eg, Ellison & Karnchanit [2012] FamCA 602; Carlton & Bissett and Another (2013) 143 FamCA; Dennis & Pradchaphet [2011] FamCA 123; Collins & Tatoi [2010] FamCA 878 (Loughnane J); O’Connor & Kasemsarn [2010] FamCA 987 (Ainslie‐Wallace J); Baker & Landon [2010] FMCAfam 280 (25 March 2010) [34] (Reithmuller FM); Groth & Banks [2013] FamCA 430 (Cronin J); Bateman & Kavan [2014] FCCA 2521 (1 October 2014) [85], [86] (Harman J). 34 Fehlberg et al, above n 33, 120‐124. See, eg, Gough and Anor & Kaur [2012] FamCA 79 (MacMillan J); Re Michael: Surrogacy Arrangements [2009] FamCA 691 (Watts J); Findlay & Punyawong [2011] FamCA 503 (Watts J); Dudley & Chedi [2011] FamCA 502 (Watts J); Mason & Mason [2013] FamCA 424 (Ryan J); Bernieres & Dhopal [2015] FamCA 736 (Berman J); [2011] FamCA 503; Hubert & Juntasa[2011] FamCA 504; Johnson & Chompunut [2011] FamCA 505. 35 Groth & Banks [2013] FamCA 430 (11 June 2013) [16] (Cronin J).
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Chapter Three – Current Law reality of this child’s conception’ and held that Mr Karvan was the child’s legal father (and therefore liable to pay child support).36 Yet, despite using the term ‘enlarging’, judges have not yet been willing to use it to find that a child may have more than two parents.37 Partly this is a result of s 60H being very clear to exclude gamete donors as legal parents where the woman giving birth to the child has a married or de facto partner. There seems, however, to be a norm at play here as well – that children must have two parents, no more and no less. For example, Cronin J in Groth & Banks, remarked that ‘[t]he fact that a child has two parents who are her or his biological progenitors permeates the language of the Act’.38 This means that where a male progenitor asserts an intention to parent a child who would otherwise have only a mother as legal parent, there is an emerging pattern of judges including him within the definition of ‘parent’ based on his combination of genetic contribution and intention to parent.39
B Testing Genetic Parentage
Given the ‘born or begotten’ definition of parent used by the family courts, a key way to rebut or affirm presumptions of parentage (and therefore to bring someone into or out of the category of legal parent) is to bring genetic parentage testing evidence. For example, in order to change a child’s birth certificate to add or remove a father, the various Births Deaths and Marriages Registrars require evidence.40 While the legislation refers simply to ‘other evidence the Registrar may require’, Births Deaths and Marriages Victoria give examples of relevant evidence as ‘DNA‐based parentage test (paternity test) approved by National Association of Testing Authorities’ or court orders.41 Legal
36 Bateman & Kavan [2014] FCCA 2521 (1 October 2014) [73] (Harman J). 37 B v J (1996) FLC 92‐716, 196‐197 (Fogarty J). 38 Groth & Banks [2013] FamCA 430 [14] (Cronin J). 39 Ibid; Masson & Parsons [2017] FamCA 789 (3 October 2017). 40 See, eg, section 20(2)(b) of the Births, Deaths and Marriages Registration Act 1996 (Vic) also provides that a court (including a court of another state or the Commonwealth) which has found registrable information included in a entry on the birth register may direct registration of the birth or inclusion or correction of registrable information. 41 Births Deaths and Marriages Victoria, Add or Remove a Parent on a Birth Certificate (5 March 2018) State of Victoria, Australia
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Chapter Three – Current Law parentage on a birth certificate can therefore be changed to align with genetic parentage without a court order or declaration under the Registrar’s broad powers to ‘bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event.’42 Different provisions for genetic parentage testing orders apply depending on the context of the parentage dispute. For disputes regarding property or parenting orders under the FLA or child support, genetic parentage testing may be ordered under s 69W FLA. For any other parentage dispute, there are statutory provisions in every state or territory (except for Victoria and South Australia) enabling orders to be made requiring genetic parentage testing.43 If one parent arranges for a child to be tested without the other parent’s consent, the results are likely to be inadmissible as improperly or illegally obtained evidence and the parent obtaining the results could be guilty of a criminal offence (though such results may nonetheless help clear the ‘reasonable belief’ hurdle for official testing orders discussed below).44 Testing orders under s 69W do not enable forcible testing, but if a person refuses to undergo testing, or to consent to their child undergoing testing, then the court may ‘draw such inferences from the contravention as appear just in the circumstances’, as occurred in Tryon.45 As the law is currently structured, the court has no jurisdiction under the FLA to make parentage testing orders unless a child’s parentage is relevant to other
42 Births, Deaths and Marriages Registration Act (1996) (Vic) s 43. 43 Status of Children Act 1996 (NSW) s 26; Status of Children Act 1974 (Tas) s 13; Status of Children Act 1978 (Qld) s 11; Parentage Act 2004 (ACT) s 34; Status of Children Act (NT) s 13; Family Court Act 1997 (WA) s 195. The Victorian Supreme Court has considered DNA testing results as part of their jurisdiction under s 10 to make declarations of parentage, but it is unclear whether it has jurisdiction to order testing, with one judge querying whether the court would have ‘any coercive power’ to order testing: Re XY; ex parte State Trustees Ltd [2001] VSC 89 (1 May 2001) [14] (Byrne J); Helebrant v Perdic [2010] VSC 580 (14 December 2010); Farnell v Penhalluriack (No 2) [2008] VSC 214 (24 June 2008). 44 See, eg, in Ames & Ames, Dawe J found that unofficial DNA results obtained by the husband under false pretences were improperly obtained and therefore inadmissible under s 138 of the Evidence Act, and suggested that in doing so, the husband’s behaviour may have amounted to criminal deception under s 139 of the Criminal Law Consolidation Act 1935 (SA). Dawe J granted the husband’s application for parentage testing but both parties were restrained from using the results from any proceedings other than Family Court proceedings for property settlement, spouse maintenance or child support. Ames & Ames [2009] FamCA 825 [58], [94] (Dawe J). 45 Family Law Act 1975 (Cth) ss 69Y(2) and 69Z(3); Clutterbuck & Tryon & Anor [2008] FMCAfam 784 (30 July 2008).
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Chapter Three – Current Law proceedings and honest, bona fide and reasonable doubts as to parentage are raised. The court must be satisfied that the child’s parentage is a ‘question in issue under proceedings under this Act’.46 Courts have interpreted this threshold question as setting two hurdle requirements. First, there must be other proceedings on foot for which the child’s parentage is relevant – for example, proceedings relating to child maintenance, parental responsibility or with whom the child lives and spends time.47 Courts have also been willing to find jurisdiction where the only proceedings are under the CSAA.48 Where, however, an adult child sought orders for a possible genetic father to be tested, and there were no relevant family law or child support proceedings on foot, the court has refused to order genetic testing.49 Similarly, where the putative father had died, s 69W could not be used to authorise posthumous testing.50 Next, the court needs to be satisfied that there is evidence which places the child’s parentage in doubt – at a minimum, the person applying for the testing order must have an ‘honest, bona fide and reasonable belief as to the doubt’.51 This may depend on the judge’s assessment of the credibility of the person raising doubts.52 In most cases, where a presumption applies, mere suspicion of non‐paternity is rarely sufficient to satisfy the court,53 and courts will not ‘allow a fishing expedition by way of paternity tests … in situations where there is no real evidence to place the paternity of the child in issue’.54 A court will not order parentage testing ‘merely because it is requested to do so’.55 Specific evidence is required, for example that the mother was already pregnant at the time the parties first met,56 had an ongoing relationship with
46 Family Law Act 1975 (Cth) s 69W(1). 47 McK & K & O [2001] FamCA 990 (11 July 2001). 48 G & H [1993] FamCA 39 (Fogarty, Straus and Wilczek JJ). 49 Secretary of the Attorney‐General's Department & Evans and Norris [2010] FMCAfam 913 (30 August 2010). 50 McK & K & O [2001] FamCA 990 (11 July 2001). 51 Duroux & Martin [1993] FamCA 125 (29 November 1993) [26]. 52 See, eg, Hadley & Pock [2011] FMCAfam 117 (17 February 2011) [141] (Roberts FM). 53 See, eg, Madison & Orton [2010] FamCA 372 (11 May 2010); TNL & CYT [2005] FamCA 77 (23 February 2005). 54 In the Marriage of Diggins (1991) 105 FLR 439, 79,269 (Mullane J). 55 In the Marriage of F and R (1992) 15 Fam LR 533, 79,276, cited by Brianna v Brianna [2010] FamCAFC 97 [169] (Finn and Thackray JJ). 56 Taylor v McQuillan (Unreported, Family Court of Australia, Kay J, 7 May 1990).
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Chapter Three – Current Law another man at the time of conception,57 that the presumed father had had a vasectomy,58 or that unofficial results indicated non‐paternity.59 There is a tension here between this threshold requirement for ‘honest, bona fide and reasonable belief as to doubts’ and a number of judicial remarks that ‘parentage will not be determined by presumptions but by the best available evidence allowed by modern science’.60 Once an order for parentage testing is in place, it may be very difficult for a child’s existing legal parentage to be preserved for two reasons: the testing reveals that the presumed father is not the child’s genetic father and the court finds that he is therefore not a legal father; or, if a party refuses testing, the court may draw adverse inferences from that refusal and make a similar finding.61 Current parentage law attempts to address four functions (providing information about the child’s origins, determining default parental responsibility for a child at birth, describing a child’s legal kinship identity, and allocating economic responsibility for the child) using the one concept of legal parentage.62 This means that the decision whether to allow genetic testing is a double‐edged one. It may provide more accurate information regarding a child’s genetic heritage but in the same moment, it may undermine the child’s existing legal kinship identity and the social and legal relationships built upon that identity. The current bundled structure of legal parentage means that if knowledge of genetic origins is changed by a DNA result, then legal parentage automatically changes with it (though it may require a court declaration to recognise that change). Thus one decision – to allow paternity testing – may set in chain a cascade of related
57 Tryon & Clutterbuck [2007] FamCA 580 (15 September 2009). 58 Brianna v Brianna [2010] FamCAFC 97 [170] (Finn and Thackray JJ). 59 Including surreptitiously‐obtained DNA testing results, which Dawe J remarked could make Mr Ames guilty of a criminal offence: Ames & Ames [2009] FamCA 825 [94] (Dawe J). 60 Brianna v Brianna [2010] [2010] FamCAFC 97 [21] (Bryant CJ in reference to the Full Court’s conclusion in In the Marriage of Lee and Tse (2005) 33 Fam LR 167). 61 ‘It may well be that many of the complaints now raised by them on this appeal would have been more appropriately raised in an appeal against the parentage testing orders of 23 August 2007. But that opportunity was not taken.’ Tryon & Clutterbuck (No 2) [2009] FamCAFC 176 (15 September 2009) [36] (Finn J). 62 Ngaire Naffine, Law's Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Hart Publishing, 2009) 316.
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Chapter Three – Current Law consequences, many of which do not allow for a further opportunity for judicial discretion and /or assessment of the child’s best interests. To try and consider this entire chain of hypothetical events within the determination about whether testing is in the child’s best interests would be difficult. Yet, because our law automatically links genetic and legal parentage (except for adopted, ART‐conceived or surrogacy‐born children), there is no further opportunity to consider the impact of these consequential impacts on the other functions which legal parentage serves, and on the best interests of the child in question. Sometimes, the best interests of the child may point to the child having access to information about their genetic origins, but also having their existing legal kinship maintained. Because these functions are locked together within the status of legal parentage, current law does not allow both these interests to be met. Adopted or donor conceived children face a similar mismatch between their genetic and their legal (and often social) parentage. Where the mismatch is intended by the adults involved, our family law and laws regulating adoption and assisted reproductive treatment have evolved to recognise that these children have two distinct needs – for accurate information about their biological and genetic origins, and for legal recognition of their functional family. As Fehlberg and Behrens point out:
[t]he appropriateness of any emphasis on biological parenthood from the point of view of children’s best interests can be questioned, with the aid of both psychological and sociological literature which suggests that it is the quality of the relationships between children and their carers which is important... On the other hand, psychological theory supports the importance of knowing one’s biological origins and emphasises the importance of relationships with parents in identity formation.63
It is still unclear exactly what role the child’s best interests should play in decisions about genetic parentage testing under s 69W. Amendments made in 2012 specified that orders made under the Parentage Evidence provisions (subdivision 12E FLA) are not parenting orders, and therefore the best interests of the child are not
63 Belinda Fehlberg and Juliet Behrens, Australian Family Law: The Contemporary Context (Oxford, 2008) 241.
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Chapter Three – Current Law paramount (though presumably they may still be considered).64 Prior to the 2012 amendments, the courts tended to treat best interests as paramount for s 69W in the context of parenting orders, but not in child support cases.65
C Declaring Legal Parentage
As with ‘parentage testing’ orders, how a declaration of parentage may be made depends on the context in which parentage has been disputed. Where parentage is disputed in the context of a Family Law Act (‘FLA’) dispute (eg regarding parenting or property orders), a declaration may be made under s 69VA of the FLA;66 for child support disputes, under s 107 of the CSAA; and for any other type of dispute (except in Western Australia) parties may apply for a declaration under their State or Territory SoC Act.67 Unlike the declaratory powers under the FLA, those under State or Territory law are not
64 Family Law Act 1975 (Cth) s 64B(1) ‘However, a declaration or order under Subdivision E of Division 12 is not a parenting order.’ Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) s 17. 65 Brianna v Brianna [2010] FamCAFC 97 (28 May 2010) [75] (Bryant CJ); F & R (1992) FLC 92‐300 (Butler J, Family Court of Australia); Ibid 79, 275. See discussion in Richard Chisholm, 'Parentage: Some Testing Problems ' (2010) 24 Australian Journal of Family Law 242. 66 This provision was inserted in 2000 after the High Court suggested in G v H in 1994, that there was some doubt as to whether the Family Court has the power to make a determination of parentage for the purposes of Family Law Act proceedings: G v H (1994) 181 CLR 387 [16] (Dean, Dawson and Gaudron JJ). Section 69VA was inserted by the Family Law Amendment Act No. 143 of 2000 (Cth) s 3 and Sch 3[69]. 67 In every Australian state and territory apart from Western Australia, it is possible to apply for a Parentage Declaration under the relevant status of children legislation (though in NT there are separate provisions for declarations of paternity and maternity). Status of Children Act 1996 (NSW) s 21; Status of Children Act 1978 (Qld); Family Relationships Act 1975 (SA) s 9; Status of Children Act 1974 (Tas) s 10; Status of Children Act 1974 (Vic) s 10, s 10(1); Parentage Act 2004 (ACT) s 19; Status of Children Act (NT) ss 11 and 12 (declarations of paternity or maternity respectively). The Family Court Act 1997 (WA) does not include any provision regarding a declaration of parentage. Div 11, Subdiv 4 (Parentage Evidence) of the Family Court Act 1997 (WA) mirrors FLA Div 12 Subdiv E of the FLA but does not include an equivalent provision to s 69VA allowing for declarations of parentage. It appears that it would therefore not be possible to obtain a declaration of parentage in WA. The NT Court of Appeal found in 2002 that the court has no inherent jurisdiction to make a declaration of paternity. In Re An Application under the Status of Children Act [2002] NTCA 3 [2002] (20 May 2002).
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Chapter Three – Current Law confined to situations where parentage is relevant to other proceedings on foot, nor to living persons.68 The State and Territory Status of Children Acts generally give the court jurisdiction only to make parentage declarations where ‘it is proved to its satisfaction that the relationship exists’, and so would only allow for positive declarations of parentage.69 In contrast, in the child support context, s 107 expressly provides for a negative declaration that ‘a person should not be assessed in respect of the costs of the child because the person is not a parent of the child’ (while positive declarations are dealt with under s 106A).70 A s 107 application must be brought within 28 days of the payer receiving the child support assessment, but judges have regularly been prepared to hear s 107 applications out of time on the basis that doubts as to paternity have only arisen well after child support has been assessed.71 Where DNA testing indicates a presumed father is not a genetic father, Australian judges have been willing to waive the time limit – even where the delay has been close to a decade.72 In contrast, the Uniform Parenting Law adopted by a number of US states sets a two‐year limit from the child’s birth on challenges to paternity which is designed to ensure that any disputes regarding paternity are resolved as early in the child’s life as possible.73 For example, in 2007, the Supreme Court of Florida refused a presumed father’s application to re‐open the question of his child’s paternity as it was beyond the one‐year time limit for such
68 See, eg, Whitley & Ingham, where Ms Whitley’s application for a declaration that Mr Ingram was her daughter’s parent was refused because Mr Ingram had died, however Terry J indicated that Ms Whitley could obtain a declaration from the NSW Supreme Court under s 21(1) of the Status of Children Act 1996 (NSW): Whitley & Ingham [2013] FCCA 869 (22 July 2013). 69 See, eg, Status of Children Act 1974 (Vic) s 10(1). 70 Child Support (Assessment) Act 1989 (Cth) s 107, 106A. 71 Indeed, the ability of misattributed fathers to recover past child support payments under s 143 presumes a significant time gap between the date of assessment and the s 107 order and that judges are willing to extend the time for making the s 107 application. In V & V [2002] FMCAfam 408 (19 November 2002) Bryant CFM (as she then was) remarked that the general principles governing time limits ‘have to give way to some extent to the nature of these applications and to the regime established by the Child Support Assessment Act’; See also Forsythe & Latimer & Anor [2010] FMCAfam 478 (12 March 2010 ); DRP v AJL [2004] FMCAfam 440 (20 September 2004) [28]; G & T [2002] FamCA 1517 (18 October 2002); Ibid. 72 See, eg, W v H [2004] FMCAfam 28 (20 January 2004) (nine years) and Radcliffe & Hall [2011] FMCAfam 718 (2 August 2011) (ten years). In Levine & Levine [2011] FMCAfam 821, the child was 14 at the time of the paternity dispute, though the mother and presumed father had only separated two years before. 73 Leslie Joan Harris, 'The Basis for Legal Parentage and the Clash Between Custody and Child Support ' (2009) 42 Indiana Law Review 611, 635; Uniform Parentage Act 15 USC § 204(5) (2002) s 607(a).
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Chapter Three – Current Law applications, on the basis that ‘courts have consistently held that it is in a child’s best interest to promote stability and finality in matters of paternity’.74 Australian family courts have taken two different approaches regarding what exactly is being declared within a parentage declaration – whether it is biogenetic parentage or legal parentage. For children of misattributed paternity, the common law definition of ‘parent’ means that the two are assumed to be the same. These different approaches become clearer, however, where exceptions to the common law definition of ‘parent’ apply – for example for children born via assisted reproductive treatment or adopted children. In the cases regarding ART‐conceived children, parents have sometimes sought to use s 69VA to clarify their children’s legal parentage in the context of surrogacy or donor conception. In two 2009 judgements where lesbian mothers sought declarations under s 69VA that both mothers were legal parents, the Full Court of the Family Court declined to make the declarations. In Aldridge & Keaton, Bryant CJ, Boland & Crisford JJ refused to consider making a parentage declaration in favour of a non‐birth mother on the basis that s 69VA was part of provisions facilitating parentage testing procedures. Therefore, they concluded that, ‘[a]s originally inserted into the Act it was not intended as a provision to enable declarations of parentage to be made in respect of parties in a same‐sex relationship’.75 Similarly, in Simpson & Brockman, Warnick J (Barry and May JJ agreeing) interpreted s 69VA narrowly as purely a question of biogenetic parentage:
I am not satisfied that the power to make a declaration as to parentage in that section in fact applies to circumstances that present here, where there is no issue about the [biogenetic] parentage of either of the children. It is well known who the mother is of each child. It is not known who the donor of sperm was, but it is known that it was the same male person in each case. Nothing contended to be any other way.
The issue here is not about parentage, but the position or description which each of the mother's [sic] wishes to adopt in relation to the child of the other mother for
74 Parker v Parker 950 So 2d 388 (Fla 2007) 394 (Bell J). 75 Aldridge & Keaton [2009] FamCAFC 229 (22 December 2009) [19] (Bryant CJ, Boland & Crisford JJ).
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the purpose of parenting orders. That is not the same as the determination of an issue about parentage.76
This narrow approach has been criticised, with Fehlberg et al remarking in 2015:
… this statement incorrectly characterises the issue as one of the mothers’ subjective description of their roles, when the status of parent under the FLA (and through all Commonwealth law through section 69VA) is of considerable importance. Parentage broadly, not just genetic parentage, reaches beyond inter partes issues, and is one of wider legal and social significance.77
A number of subsequent judgments have taken the opposite approach by treating ‘parentage’ in s 69VA as legal parentage in order to make parentage declarations confirming that both lesbian mothers in a couple are legal parents of all their children, irrespective of which mother gave birth.78 This view accords with the approach taken by the Northern Territory Court of Appeal in a 2002 decision concerning an adult adopted woman who sought a declaration of paternity under the Status of Children Act (NT) naming her birth father.79 There, the Court of Appeal held that ‘status’ within the Status of Children Act meant ‘the legal status rather than the biological status of children’ and therefore refused the application.80 Treating ‘parentage’ as legal parentage seems to characterise the approach taken in much of the state and territory legislation. For example, the title of the ACT legislation governing the status of children is the ‘Parentage Act 2004’ and the Act defines non‐biological parents of ART‐conceived children as parents via conclusive presumptions.81 A‘parentage declaration’ under s 15 of that Act can be made on the
76 Simpson & Brockman [2009] Fam CAFC 73 [7], [8] (May and Barry JJ agreeing). 77 Fehlberg et al, above n 11, 116. 78 Gottspiel & Rufus [2009] FamCA 512 (18 June 2009) [36]. Faulks DCJ was also willing to make a s 69VA declaration in favour of lesbian parents, though the parties didn’t seek such a declaration in Maurice & Barry [2010] FamCA 687. Connors & Taylor [2012] FamCA 207 [16]. 79 Re An Application under the Status of Children Act [2002] NTCA 3 [16] (Mildren J). The applicant already knew the identity of her biological father, and it was alleged he had been represented at the time of her adoption by her mother and step‐father. The applicant, however, wanted a formal declaration of paternity, citing that it was necessary ‘to enable her, should she wish to do so, to take citizenship of another country, under the laws of which she may receive other benefits, including pension rights’ [32]. 80 Ibid [16] (Mildren J). 81 Parentage Act 2004 (ACT) s 11.
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Chapter Three – Current Law basis of claims that someone is ‘a parent of a child’, with ‘parent’ being defined as the child’s mother, father or ‘someone else who is presumed under the Parentage Act 2004, part 2 to be a parent of the child’.82
Nonetheless, a number of other judges in the family courts have persisted with the strictly biogenetic parentage approach to s 69VA declarations. Ryan J in Ellison & Karnchanit suggested that the provision is ‘concerned with whether a declaration of parentage should be made in favour of a biological parent’, and therefore made a s 69VA declaration that the commissioning father was a parent of the children because he had contributed sperm to their conception.83 In Groth & Banks in 2013, Cronin J (like the Full Court in Aldridge) pointed to the legislative history of the referral of powers from states to Commonwealth to interpret s 69VA as referring only to biogenetic parentage.84 Cronin J was satisfied that Mr Groth was both the ‘biological progenitor’ and a ‘parent’ of the child for the purposes of Part VII of the FLA and therefore felt it ‘unnecessary’ to make a s 69VA parentage declaration. The biogenetic approach to s 69VA was also apparent in Cleary J’s recent judgment in Masson & Parsons. This case involved a lesbian couple who sought to relocate to New Zealand with their children but were opposed by the biological father of the elder child (Mr Masson, whom both children referred to as ‘Daddy’) and his partner, both of whom had been involved in the children’s lives since birth.85 In Masson,
82 Parentage Act 2004 (ACT) s 6. 83 Ellison & Karnchanit [2012] FamCA 602 [77]. 84 Groth & Banks [2013] FamCA 430 [23]‐[25] (Cronin J). See also Commonwealth Powers (Family Law – Children) Act 1986 (Vic) s (3)(1)(c). 85 Masson & Parsons [2017] FamCA 789 (3 October 2017).
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Chapter Three – Current Law one of the main issues for dispute was whether Mr Masson was a legal parent, yet Cleary J held that section 69VA had: no relevance here because the trigger for the operation of the section is not present. There is no issue in question over the parentage of either child. The biological relationships are not in dispute.86
Cleary J thus treated legal parentage as a simple story of the ‘biological relationships’, and in the process dismissed the relevance of the children’s perspectives in deciding their parentage:
… the subject children define their family by feelings, not by law. The adults however are seeking, as they are entitled to do, legal definition.87
Where ‘parentage’ in s 69VA is given a purely biogenetic meaning, courts have had to find other ways to make declarations that non‐genetic parents are legal parents. For example, in Baker & Landon in 2010, Reithmuller FM declared that the child was a child of the applicant under s 60H (as he was the de facto partner of the mother at the time of conception, and had consented to her treatment using donor sperm), but did not use the s 69VA provision.88 The lack of clear distinctions in both the legislation and the cases between the functions of determining a child’s biogenetic parentage and deciding their legal parentage mean that it is unclear which statutory mechanisms serve which function – so that the two shimmer and merge in some cases, and stand separate in others. A key problem with interpreting ‘parentage’ in s 69VA to mean only genetic parentage is that the provision specifies that a declaration made under it is ‘conclusive evidence of parentage for the purposes of all laws of the Commonwealth’.89 If such declarations were limited to genetic parentage, they would be at odds with other provisions in the FLA which define adoptive parents and non‐genetic parents of donor‐conceived children as parents, and they would appear to make all genetic progenitors, including gamete
86 Ibid [53]. 87 Masson & Parsons [2017] FamCA 789 (3 October 2017) [49]. But see the recent successful appeal of this decision: Parsons and Anor & Masson [2018] FamCAFC 115 (28 June 2018). 88 Baker & Landon [2010] FMCAfam 280 (25 March 2010). 89 Family Law Act 1975 (Cth) s 69VA.
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Chapter Three – Current Law donors, liable to pay child support, and eligible for default parental responsibility under s 61C of the FLA.
II LEGAL EFFECTS OF LEGAL PARENTAGE
The complexity in the laws determining who is a legal parent of a child has significant impact on families because legal parentage carries with it a number of important legal effects. These effects were outlined in Chapter 1 in terms of the four distinct functions which legal parentage is expected to serve. This part discusses some of the technical workings of two key effects of legal parentage – default parental responsibility and liability for child support. First, legal parents hold default parental responsibility for a child. Section 61B of the FLA provides that ‘parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’. The state and territory child protection acts echo this wording.90 Until a court orders otherwise, parental responsibility – including the ability to decide with whom a child lives and spends time – lies jointly with each of a child’s legal parents.91 Parental responsibility can be reallocated between the parents or to non‐parents or overridden via court orders under Part VII of the FLA or various state/territory child protection laws.92 Chapter Five considers whether parenting orders, including orders reallocating parental responsibility, can operate as a work‐around to resolve the problems created by the bundled nature of legal parentage. Second, legal parents bear primary responsibility for the financial costs of raising their child. The Australian Child Support Scheme (CSS) functions upon the idea that parents, having caused a child to exist, must contribute to the financial costs of their legal children, whether or not they have played a parenting role for that child:
The morality simply is that if one brings a child into this world one should continue to maintain that child no matter what the family situation is. No matter whether
90 See definition of ‘parental responsibility’ in section 3 of the Children Youth and Families Act 2005 (Vic). 91 Family Law Act 1975 (Cth) s 61C. 92 See, eg, care orders under s 275 of the Children, Youth and Families Act 2005 (Vic).
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one has left one family, moved off and joined another, one still must take responsibility for that initial child.93
Child support liability reduces as the amount of time the child spends in that parent’s care increases, indicating that child support payments are in a way a substitute for functional parenting.94 While a key rationale for the introduction of the CSS was to alleviate child poverty at a societal level,95 the child support legislation does not require that the best interests of the particular child be paramount in decision‐making in the same way as parenting order determinations under the FLA. The parenting order process emphasises negotiated outcomes (see s 60I) and gives broad judicial discretion to develop or ratify individual solutions tailored to particular families (provided they are in the best interests of the child). In contrast, the CSS uses a standard formula, administrative assessment, and needs clear and simple definitions of parent in order to operate cheaply and with minimum dispute or negotiation.96 In neither system, however, is legal parentage an open matter for the parties to negotiate. Where judges have discovered that parents have made private arrangements at odds with the current definition of legal parentage (for example, where a mother’s partner signs the birth certificate for her child knowing he is not the genetic father), there have been stern judicial reprimands.97 Where there is evidence that a child’s parentage has been misattributed and a child support assessment is in place regarding the child, the presumed father can apply for an order under s 107 that he is not a legal parent. If granted, such an order means that no child support liability exists for him in relation to that child. Once a s 107 order is made, the court must also consider making a s 143 order that the mother repay past
93 Commonwealth, Parliamentary Debates, House of Representatives, 16 August 1989, 167 (Mr Johns, ALP). 94 Patrick Parkinson, Australian Family Law in Context: Commentary and Materials (Thomson Reuters, 4th ed, 2009) 411. 95 John Masanauskas and Martin Philip, 'Bob Hawke's Biggest Regret', Herald Sun (Melbourne) 16 June 2007. 96 Though private agreements regarding child support are also possible under s 80C of the Child Support (Assessment) Act 1989 (Cth) by applying to the Child Support Registrar. 97 B & B & DCSR [2001] FamCA 1371 (6 December 2001); Brianna v Brianna [2010] FamCAFC 97 (28 May 2010); Taylor v McQuillan [1990] (Unreported, Family Court of Australia (Dandenong), Kay J, 7 May 1990).
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Chapter Three – Current Law child support payments.98 Here, the court has a discretion to make orders ‘as it considers just and equitable for the purpose of adjusting or giving effect to the rights of the parties and the child concerned’, but it must have regard to a list of factors added to the Act in 2006. These factors include:
i) the payer’s and payee’s conduct;
ii) finances and state of knowledge regarding the child’s parentage;
iii) any delay in applying for a s 107 declaration once it was known or reasonably suspected that the parent was not a genetic parent;
iv) whether the genetic father is likely to contribute towards the child; and
v) the nature of the relationship between the presumed father and child.
While there is some recognition of social parenting here, it is clear that the best interests of the child are not paramount, and that fairness between the parents is the key factor in the court’s decision to exercise its discretion and order a refund. Judges tend to understand ‘fairness’ in this context within a framework of heterosexual reproduction as a sexual contract – discussed further in Chapter Five. While there has been some acknowledgement by judges that requiring the mother to repay large amounts of child support is likely to adversely impact the children at the heart of these disputes, this is seen as secondary to the need to make the mother accountable:
However, the mother's penury, in isolation, cannot be allowed to be seen as a complete defence under the section, lest quite aberrant behaviour (usually with horrible emotional results for the child and the payer) is without consequences.99
If the genetic father can be identified, the mother may make a new child support application against him, however his liability cannot be backdated – therefore the mother is the sole financially liable parent during the time that paternity was misattributed. She is also ineligible for back‐pay of any social security payments that she might have received had she not been receiving the child support payments.100 It is
98 Family Law Act 1975 (Cth) s 107(6). 99 DRP v AJL [2004] FMCAfam 440 (20 September 2004) [66]. 100 B & B & DCSR [2001] FCA 1371 (6 December 2001).
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Chapter Three – Current Law unclear whether there are policy reasons for this – but it suggests a punitive and moralistic response to mothers who incorrectly identify their child’s genetic father. This power for misattributed fathers to seek a refund or redistribution from the child’s mother was extended in 2005 to cover property settlements and maintenance orders under the FLA. This may have been in response to cases such as G, A and N, M, in which the court made a s 107 declaration, but could not order a refund of child maintenance because the child was born before the application of the CSS, so that s 143 did not apply, and at that time, the FLA did not have any equivalent provision.101 In his second reading speech, then Attorney‐General, Phillip Ruddock stated that the amendments aimed to
ensure that this provision gives a clear and predictable result—that is, if a person is found not to be a parent of a child, and that person has paid child maintenance under a court order for that child, the person can expect to bring a claim in the court that made the original order, and to recover what has been paid, unless there are exceptional circumstances.102
While the provisions inserted by the amendments may create a clear and predictable result for presumed fathers seeking reimbursement of child maintenance payments, the idea that legal fatherhood is dependent on DNA has the opposite tendency for misattributed paternity children – making their legal parentage uncertain and unpredictable.
III CONCLUSION
Despite judicial and legislative rhetoric about parentage being ‘simple’, ‘natural’ and ‘scientific’, the current model of legal parentage is governed by a complex (and sometimes incoherent) mix of common law and federal and state/territory statute, in ways that sometimes transpose non‐genetic parents into the position of presumed biogenetic parent, and genetic parents out of that position.103 Under the FLA, for non‐
101 G & N [2002] FMCAfam 281 (22 August 2002). 102 Commonwealth, Parliamentary Debates, Senate, 22 June 2005, 125 (Phillip Ruddock, Attorney‐ General). 103 See, eg, Helen Riley argues that the ‘intentional legal concealment of their status as a donor‐conceived child supports secrecy’, Helen Riley, Identity and Genetic Origins: An Ethical Exploration of the Late 136
Chapter Three – Current Law adopted children, legal parentage is determined where possible by the parentage presumptions; if these are rebutted, or do not apply, then parentage is determined by DNA evidence; and if parties refuse testing, then by other facts and evidentiary inferences against the party refusing testing. It is a complex chain of alternative legal determinations, and one in which the best interests of the child and the child’s understanding of their family and their own kinship identity are often displaced by an understanding of parentage as a biogenetic ‘truth’. This rhetoric binds together the four functions bundled within legal parentage ‐ making it ‘natural’ that the same two parents appear on the birth certificate as progenitors, hold default parental responsibility, shape the child’s legal kinship identity and are held financially responsible for the child – even when the legal parents are not in fact the child’s biogenetic progenitors.
Using the rhetoric of parentage as simple biological fact to hold together the four distinct functions within legal parentage requires a great deal of technical wrangling amidst the common law and statutory definitions, presumptions and evidentiary rules governing legal parentage. This legal complexity itself belies the rhetoric of parentage as simple and natural. The next chapter interrogates the claims to ‘truth’ and ‘science’ within this rhetoric, and argues that it instead reflects social norms and a concern with preserving a narrow notion of fatherhood based on control and virility rather than on care for and connection with children.
Under the current law, legal parentage functions as a legal status which is complex to determine and with complex legal effects. Judges are able to acknowledge that for some children whose families are formed via ART or adoption, this legal status does not necessarily overlap with the child’s genetic parentage. The bundled nature of legal parentage means that non‐biogenetic parents of adopted and donor‐conceived children are listed on the child’s birth certificate as if they were biogenetic parents. This means that for most heterosexual parents of adopted or donor‐conceived children, any lack of a biogenetic link is invisible to judges (or to anyone else). Hence, the lack of genetic connection with an adopted or donor‐conceived child is almost never raised
Discovery of Adoptive and Donor ‐ insemination Offspring Status (PhD Thesis, Queensland University of Technology, 2012) 160.
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Chapter Three – Current Law within family law disputes concerning heterosexual families,104 but regularly within same‐sex parenting disputes.105 The difficulty arises where judges insist that legal parentage is at the same time a mere fact. This insistence on a rhetoric of legal parentage as biological fact or truth is examined in the next chapter. Chapter Four analyses the way in which the rhetoric surrounding parenting law draws selectively (and sometimes, uncritically) on bioscience and social science to define family and what is ‘natural’ and in the best interests of children.
104 The exception which proves this rule is Colvan & Colvan [2015] FCCA 99 (13 January 2015). In that case, husband and wife were in dispute over parenting arrangements for their three children, all of whom were conceived from the husband’s sperm and donor eggs, and were born of the wife. The husband placed great significance on their donor conception, with Bender J remarking that he ‘seems to believe this means he is the only “true” parent as the mother has no biological connection to the children’, [20]. It is unclear here whether Bender J sought to suggest that there was nothing ‘biological’ about conceiving, gestating and birthing (and perhaps also breastfeeding) the three children. The Family Report Writer referred to the husband’s view as an ‘entrenched, almost psychopathological, belief’, [51] and Bender J concluded that it was putting the children’s ‘psychological and emotional wellbeing at risk’, [182]. The mother was ordered to have sole parental responsibility and Bender J made orders that the children live with her, and only gradually recommence contact with the father to counter his campaign of alienation. At no point were the father’s arguments challenging the mother’s role in the children’s lives on the basis of a lack of genetic connection seriously entertained. 105 See Fiona Kelly, Hannah Robert and Jennifer Power, 'Is There Still No Room for Two Mothers? Revisiting Lesbian Mother Litigation in Post‐reform Australian Family Law' (2017) 31 Australian Journal of Family Law 1.
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Chapter Four
139 Chapter Four – Biotruth
CHAPTER FOUR – Biotruth Rhetoric
Having examined the complexity and lack of coherence of legal parentage in Chapter Three, this chapter explores the rhetoric which ties together the four functions bound together within legal parentage (recording the child’s origins information and legal kinship identity and allocating default parental responsibility and economic responsibility for the child). It interrogates the way in which family law judgments draw on rhetoric about truth, science, biology and genetic connection in order to describe and determine legal parentage. It argues that a particular pattern of rhetoric, described here as ‘biotruth’, has come to function as a touchstone for legal parentage. Biotruth is the notion that a child’s ‘true’ parents are the woman and man who have ‘borne or begotten’ the child.1 For example, Cronin J drew on biotruth rhetoric in Groth & Banks:
The fact that a child has two parents who are her or his biological progenitors permeates the language of the Act … [B]iology is the determining factor unless specifically excluded by law.2
Former Family Court judge, Richard Chisholm, has used the language of ‘purity’ to similar effect:
Parental responsibilities and child support obligations in our law attach to what I might call ‘pure’ parenthood: essentially people who are the biological parents, regardless of their marital status, whether they have lived with the child, or other such circumstances.3
Biotruth is my shorthand, then, for a particular version of biogenetic essentialism which has become crystallised within family law’s model of legal parentage, so that even specific statutory recognition of non‐bioparents as legal parents somehow reinforces the biogenetic norm by re‐inscribing them as the biogenetic parents on the birth
1 With a nod to Fiona Kelly’s term, the ‘rhetoric of biology’. Fiona Kelly, 'Producing Paternity: The Role of Legal Fatherhood in Maintaining the Traditional Family' (2009) 21 Canadian Journal of Women and the Law 315, 316. 2 Groth & Banks [2013] FamCA 430 [14] (Cronin J). 3 Richard Chisholm, 'Grandparents and Children's Cases in the Family Court' (2002) 24 Australian Law Reform Commission Reform Journal 53, 53.
140 Chapter Four – Biotruth certificate.4 Biotruth rhetoric includes non‐biogenetic parents as legal parents in particular situations (adoption, donor conception, authorised surrogacy) not by broadening the definition of ‘parent’ as a legal relationship status, but by transcribing them into the position of (presumed) biogenetic parents by way of what judges have described as ‘deeming’ provisions and ‘legal fictions’.5 Parents via adoption and ART therefore appear on the birth certificate so as to seemingly align the four functions of legal parentage. The child’s lack of genetic connection to one or both parents and their genetic origins remain secrets to be disclosed – at least until the child figures it out themselves and reaches an age when they are allowed to access their genetic origins information via the various adoption or donor‐conception registers.6 In terms of the analytical approach taken in this chapter, critical analysis of medicalisation – the extension of ‘the legitimate jurisdiction of medicine into new areas of human life’ – is not new. It has primarily focused, however, on analysis of the role of medicine and genetic science in transforming notions of health, illness, identity and the identification of criminal suspects.7 Australian family law scholar, Jenni Millbank has, however, borrowed Selma Sevenhuijsen’s term to suggest we are living in the ‘era of the eternal biological family’.8 This chapter builds on those analyses to consider how medicalisation and geneticisation have transformed the legal relationship of parent and
4 Knightley & Brandon [2013] FMCAfam 148 [51]. Harman FM remarks that even the inclusion of adoptive parents within the definition of ‘parent’, ‘essentially represents the legal sublimation of biological parents and is thus not inconsistent with a focus upon a biological nexus model’. 5 For example, in Baker & Landon, Reithmuller FM suggested that s 60H of the Family Law Act (which confers legal parentage on a consenting de facto partner or spouse of a woman giving birth via assisted reproductive treatment) and s 10D of the Status of Children Act 1974 (Vic) create ‘legal fictions’. Baker & Landon [2010] FMCAfam 280 (Reithmuller FM) [38]. 6 Louise Johnson, Kate Bourne and Karin Hammarberg, 'Donor Conception Legislation in Victoria, Australia: The "Time to Tell" Campaign, Donor‐Linking and Implications for Clinical Practice' (2012) 19 Journal of Law and Medicine 803. 7 Adele E Clarke et al, 'Biomedicalising Genetic Health, Diseases and Identities' in Paul Atkinson, Peter Glasner and Margaret Lock (eds), Handbook of Genetics and Society: Mapping the Genomic Era (Routledge, 2009) 21‐40, 21. 8 Jenni Millbank, 'The Limits of Functional Family: Lesbian Mother Litigation in the Era of the Eternal Biological Family' (2008) 22 International Journal of Law, Policy and the Family 149; Selma Sevenhuijsen, 'Fatherhood and the Political Theory of Rights: Theoretical Perspectives on Feminism' (1986) International Journal of the Sociology of Law 329.
141 Chapter Four – Biotruth child within Australian family law. It suggests that parentage rivals romantic love or sex as the ‘last outpost of the natural’.9 This chapter traces how understandings of legal parentage within Australian family law have been influenced by, and taken on concepts from genetic understandings of human kinship. It argues that judges, lawyers and family consultants applying these ideas within the family law setting have tended to flatten the complexities of this body of knowledge into a universalised and essentialised model of family – the ‘eternal biological family’,10 in which genetic connection (or its closest equivalent) signals which relationships are (or should be) significant. This simplification, along with law’s desire for certainty, means that Australian family law has come to treat bio‐genetic parentage as central to its common law definition of ‘parent’. This is part of a global pattern, with a number of family law scholars in various common law jurisdictions noting the tensions between an increasingly genetic definition of ‘parent’ and burgeoning diversity in patterns of family formation.11 This chapter examines in detail the rhetoric used by judges in disputed paternity judgments around biology, truth and legal parentage and interrogates the assumptions on which this rhetoric rests. As Carol Smart notes in the UK, these cases illustrate a ‘struggle over the place of truth in family relationships’.12 It suggests that when we dissect the truth rhetoric, it becomes apparent that they involve both Naturalist and Rationalist approaches to defining ‘parent’ in Naffine’s taxonomy. Biotruth rhetoric
9 Cf Kathryn Abrams, 'Legal Feminism and the Emotions: Three Moments in an Evolving Relationship' (2005) 28 Harvard Journal of Law & Gender 325, 336 (suggesting romantic love is seen as the last outpost of the natural). Catharine MacKinnon, Feminism Unmodified: Discourses on Life and Law (Harvard University Press, 1987) 218 (suggesting sex is the last outpost of the natural). 10 Sevenhuijsen, above n 8; Millbank, above n 8. 11 Fiona Kelly, 'Multiple‐Parent Families under British Columbia's New Family Law Act: A Challenge to the Supremacy of the Nuclear Family or a Method by Which to Preserve Biological Ties and Opposite‐Sex Parenting' (2014) 47 UBC Law Review 565; Susan B Boyd, 'Gendering Legal Parenthood: Bio‐genetic Ties, Intentionality and Responsibility' [63] (2007) 25 Windsor Yearbook of Access to Justice 63; Millbank, above n 8; Carol Smart, 'Making Kin: Relationality and Law' in Anne Bottomley and Simone Wong (eds), Changing Contours of Domestic Life, Family and Law (Hart, 2009) 7; Janet L Dolgin, 'Biological Evaluations: Blood, Genes and Family' (2008) 41 Akron Law Review 347; Wanda Wiegers, 'Fatherhood and Misattributed Genetic Paternity in Family Law' (2011) 36 Queen's Law Journal 623. 12 Carol Smart, 'Family Secrets: Law and Understandings of Openness in Everyday Relationships' (2009) 38 Journal of Social Policy 551, 553.
142 Chapter Four – Biotruth therefore masks a number of policy decisions made by judges and legislators in defining legal parentage. Here, I draw on cases from the UK as well as from Australia, as there is frequent reference between the two jurisdictions. Part I sets out the analytical framework of the chapter, drawing on the literature on biosociality, biolegality and authoritative knowledge. Part II then works through the assumptions which biotruth rhetoric builds upon, drawing on examples from judgments and using current literature on family relationships and genetic science to identify significant flaws in these assumptions. It argues that these flawed assumptions undermine the coherence of biotruth rhetoric as an organising concept which binds together four distinct functions within legal parentage. Part III then addresses the interplay within biotruth rhetoric of Naturalistic and Rationalistic approaches, and argues that despite the emphasis on science and biology, biotruth rhetoric is also driven by arguments about men’s intentions regarding their role as legal parents. Cloaking such policy arguments in rhetoric about scientific fact or biological truth only prevents open discussion of them. More critically for the purposes of this thesis, biotruth rhetoric hinders the ability of the courts to hear children’s perspectives on their own family relationships and kinship identities. Unravelling biotruth rhetoric and the assumptions it rests on is a crucial step, therefore, in developing a more child‐focused model of legal parentage.
V ANALYTICAL FRAMEWORK
My analysis in this chapter builds on critical analyses of ‘genetic thinking’ within family law and in other contexts. These include Julie McCandless and Sally Sheldon’s examination of law’s role in both reflecting and shaping the ‘cultural story told about mitochondria’s importance’ for family relationships and kinship identities.13 Beyond family law, I draw on Rabinow’s notion of biosociality in health policy, and the idea of ‘biolegality’ developed by Lynch and McNally in the context of the use of DNA fingerprinting within criminal law to produce ‘suspects’ and ‘pre‐suspects’.14 These are,
13 Julie McCandless and Sally Sheldon, 'Genetically Challenged: The Determination of Legal Parenthood in Assisted Reproduction' in Tabitha Freeman et al (eds), Relatedness in Assisted Reproduction: Families, Origins and Identities (Cambridge University Press, 2014) 61, 61. 14 Paul Rabinow, 'Galton's Regret and DNA Typing' (1993) 17 Culture, Medicine and Psychiatry 59; Michael Lynch and Ruth McNally, 'Forensic DNA Databases and Biolegality: The Co‐Production of Law,
143 Chapter Four – Biotruth inevitably, epistemological analyses – approaches which address ‘how the emerging “truths” that are being produced about humans in the diverse field of genetics shape our identities and forms of group activism’.15 Here, I argue that just as DNA testing for criminal identification was imagined in the late 1980s as ‘unlocking the black box of identity’,16 judges in family law cases have tended to imagine DNA paternity testing as unlocking the black box of parent‐child relationships so that law can find out who is the ‘true’ father. Michael Lynch and Ruth McNally use ‘biolegality’ to describe the way in which ‘developments in biological knowledge and technique are attuned to requirements and constraints on the criminal justice system, while legal institutions anticipate, enable and react to those developments’. 17 Although a significant body of research literature critiques the law’s use of DNA evidence within the criminal justice system,18 there has been less critique of the use of DNA evidence within family law.19 Yet the law of parentage and legitimacy has long been a hotspot in the relationship between law and science, with Learned Hand J dating the first use of an expert witness within the common
Surveillance Technology and Suspect Bodies' in Paul Atkinson, Peter Glasner and Margaret Lock (eds), Handbook of Genetics and Society: Mapping the Genomic Era (Routledge, 2009) 283‐301. 15 Lynch and McNally, above n 14, 296. 16 Rabinow, above n 14, 60 quoting Jack Ballantyne, George Sensabaugh, and Jan Witkowski, DNA Technology and Forensic Science Banbury Report 32 (1989) xi. 17 Lynch and McNally, above n 14, 284. 18Rabinow, above n 14; Michael Lynch et al, Truth Machine: The Contentious History of DNA Fingerprinting (University of Chicago Press, 2008); Lynch and McNally, above n 14; Victor Toom, 'Bodies of Science and Law: Forensic DNA Profiling, Biological Bodies, and Biopower' (2012) 39 Journal of Law and Society 150; Jackie Leach Scully and Rachel Woodward, 'Naming the Unknown of Fromelles: DNA Profiling, Ethics and the Identification of First World War Bodies' (2012) 5 Journal of War & Culture Studies 59. 19 But see McCandless and Sheldon, above n 13; Heather Draper and Jonathan Ives, 'Paternity Testing: A Poor Test of Fatherhood' (2009) 31 Journal of Social Welfare and Family Law, 407; Heather Draper, 'Paternity Fraud and Compensation for Misattributed Paternity' (2007) 33(8) Journal of Medical Ethics 475; Jonathan Ives et al, 'Becoming a Father/Refusing Fatherhood: An Empirical Bioethics Approach to Paternal Responsibilities and Rights ' (2008) 3 Clinical Ethics 75; Nancy E Dowd, 'From Genes, Marriage and Money to Nurture: Redefining Fatherhood' in Mark A Rothstein, Thomas H Murray and Gregory E Kaebnick (eds), Genetic Ties and the Family: The Impact of Paternity Testing on Parents and Children (Johns Hopkins University Press, 2005) 81‐93.
144 Chapter Four – Biotruth law system to 1619, when doctors testified that it was possible for a woman to bear a legitimate child forty weeks and nine days after the death of her husband.20 Lynch and McNally argue that when biolegality is used in the criminal justice context, it produces ‘risky’ suspects, ‘pre‐suspects’ and ‘statistical suspects’.21 This chapter suggests there is a similar ‘symbiotic relationship between law and biotechnology’ at play between DNA parentage testing technology and the family law courts. This produces (and deconstructs) ‘parents’, ‘children’ and ‘siblings’ – and sometimes creates tensions between the social parenting and kinship relationships and the legal or biogenetic relationships.22 Susan Kelly and others have examined the role of molecular biology in the ‘production of new individual and collective identities’ and in ‘the material and metaphorical production of bodies’.23 Likewise, when courts make a determination that a man is not a parent of a child due to a genetic discrepancy, they use bioinformation to reconstruct familial identities and with them, the legal kinship identities of individual children and adults. As Carol Smart suggests,
We need to consider how this one form of truth (genetic parentage) has become so overarching in significance. We also need to give consideration to how real people live with truths and untruths (or complexities of truths) ...24
20 Alsop v Bowtrell (1619) 79 Eng Rep 464 (KB); (1619) Cro Jac 541, cited in Learned Hand, 'Historical and Practical Considerations Regarding Expert Testimony' (1901) 15 Harvard Law Review 40, 41. 21 Lynch and McNally, above n 14. 22 Ibid 284. 23 Susan E Kelly, 'From “Scraps and Fragments” to “Whole Organisms”: Molecular Biology, Clinical Research and Post‐Genomic Bodies' in Paul Atkinson and Peter Glasner (eds), New Genetics, New Identities (Routledge, 2007) 44, 44. 24 Smart, 'Family Secrets: Law and Understandings of Openness in Everyday Relationships', above n 12, 558.
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To analyse family law’s use of biotruth rhetoric and biogenetic knowledge in shaping legal parentage, I also draw on anthropologist Brigitte Jordan’s notion of ‘authoritative knowledge’.25 This is the notion that:
…for any particular domain several knowledge systems exist, some of which, by consensus, come to carry more weight than others… [and] frequently, one kind of knowledge gains ascendance and legitimacy.26
This chapter therefore argues that biotruth rhetoric within family law legitimates one particular kind of knowledge – knowledge of a child’s genetic progenitors – as authoritative knowledge in deciding a child’s legal parentage, and that there is a corresponding ‘devaluation, often the dismissal of other kinds of knowing’, such as children’s knowledge of who they regard and rely on as their parents.27 Jordan writes that
The constitution of authoritative knowledge is an ongoing social process that both builds and reflects power relationships within a community of practice. It does this in such a way that all participants come to see the current social order as a natural order, that is, the way things (obviously) are.28
The nexus between legal parentage and the genetic relationship between progenitor and progeny is often treated as so natural and obvious that judges assume an automatic correspondence between the two – even though this is not reflected in the history of legal parentage (discussed in Chapter Two) nor its current operation (discussed in Chapter Three). The next section therefore draws on scholarship on
25 Brigitte Jordan, 'Authoritative Knowledge and Its Construction' in Robbie E Davis‐Floyd and Carolyn F Sargent (eds), Childbirth and Authoritative Knowledge: Cross Cultural Perspectives (University of California Press, 1997) 55, 56. 26 Ibid. 27 Ibid. 28 Ibid.
146 Chapter Four – Biotruth biosociality, biolegality and authoritative knowledge to interrogate the assumptions made by judges and legal scholars utilising biotruth rhetoric.
VI BIOTRUTH: FIVE ASSUMPTIONS
The judgments and legislation examined in this study draw on language of ‘biology’, ‘science’ and ‘truth’ within what I have termed a rhetoric of ‘biotruth’ regarding parentage – the notion that genetic testing to determine a child’s genetic progenitors tells us ‘the truth’ about our family relationships. Within this rhetoric, genetic parent‐child relationships are valorised as more truthful than other connections created via social or relational means such as parenting, care, decision‐making, kinship relationships or cultural traditions. This is a prioritisation of particular scientific ways of knowing over social ways of knowing – of knowledge at the level of molecular interactions rather than interactions between humans. This is not a rhetoric confined to law. It fits within a broader cultural discourse about the role of genetic connections and about past government and social practices which deliberately separated some birth families (particularly indigenous families and unmarried mothers) and concealed origins information, sometimes with more or less explicit eugenic goals.29 My concern here is not to argue that knowing and having a connection with genetic progenitors does not (or should not) matter to children and the adults they become, or to those progenitors and extended kin. For many people, and particularly those who have experienced adoption, relinquishment or donor‐conception, having access to accurate information about their biological and genetic origins and the opportunity to have a relationship with their genetic parents or children is very important to them.30 Many adoptees (or at least those who involve themselves in law reform) also use the language of ‘truth’ regarding biogenetic parentage, but not
29 For more on these broader social, political and cultural patterns, see Shurlee Swain and Renate Howe, Single Mothers and their Children: Disposal, Punishment and Survival in Australia (Cambridge University Press, 1995); Rickie Solinger, Pregnancy and Power ‐ A Short History of Reproductive Politics in America (New York University Press, 2005). 30 Helen J Riley, 'Listening to Late Discovery Adoption and Donor Offspring Stories: Adoption, Ethics and Implications for Contemporary Donor Insemination Practices' in Ceridwen Spark and Denise Cuthbert (eds), Other People's Children: Adoption in Australia (Australian Scholarly Publishing, 2009) 145‐160; Victorian Law Reform Commission, Review of the Adoption Act 1984 (2017) 303.
147 Chapter Four – Biotruth necessarily as the only truth. For example, in the consultations as part of the Victorian Law Review Commission’s recent report on the Adoption Act 1984 (Vic),
Most people said the law must change, to ensure birth certificates reflect ‘the truth’ of an adopted child’s identity. However, views differed on which ‘truth’ the birth certificate should reflect and, therefore, on how the child’s identity should be reflected.31
For some stakeholders consulted, a child’s ‘true’ parentage would only ever be their biogenetic parentage, but for others, the ‘truth’ they wanted birth certificates to reflect was the fact of adoption and their (or the child’s) connections with both birth parents and adoptive parents. The following sections interrogate family law’s engagement with this first kind of truth claim ‐ a claim which requires one set of parents to be the ‘true’ parents – either the genetic parents, or someone else transposed into their position via being nominated on a birth certificate and perhaps also adoption documents. In particular, the next sections analyse a set of assumptions. Christine Piper describes assumptions as:
… those ideas, events and principles which are taken for granted as being true. They are no longer – or may never have been – subject to critical scrutiny, either because they appear self‐evident or because it is assumed they have been proved to be ‘true’. Spelling them out, thinking about their provenance and querying their validity is therefore not necessary. Indeed, the existence of a strong and widely held assumption may preclude the possibility of individuals thinking about the basis of that assumption: it simply does not cross their minds to do so because they do not
recognize the existence of an alternative way of thinking.32
Each section interrogates one of the five assumptions at play within biotruth rhetoric. First, biotruth rhetoric enables judges to assume that legal parentage is a question of fact, not law. This categorisation is supported by two assumptions about the science regarding parentage, family and identity: that ‘biological’ parentage exclusively reflects a child’s genetic progenitors; and that a person’s identity is necessarily defined by their inherited genetic identity. Biotruth rhetoric is further bolstered by two policy‐
31 Victorian Law Reform Commission, (2017) 97. 32 Christine Piper, 'Assumptions About Children’s Best Interests' (2000) 22 Journal of Social Welfare and Family Law 261, 261.
148 Chapter Four – Biotruth related assumptions: that aligning genetic and legal parentage is fundamentally just and that it serves the best interests of the child. It is argued that this is a notion of ‘justice’ which prioritise fairness for men above fairness for children. Likewise, the understanding of ‘best interest of the child’ assumed by biotruth rhetoric fails to take into account the complexity and diversity of children’s interests, and diverse functions bundled within the current model of legal parentage. This is a relational analysis, which seeks to centre children and the relationships they rely on for care, kinship and identity and to trace how children and their relationships are affected by these assumptions within biotruth rhetoric.
A Legal Parentage: conflating law and fact
Despite the statutory complexity described in Chapter Three, many judges hold fast to the idea that legal parentage is simply a fact to be proved, and therefore that the exceptions to the ‘borne or begotten’ common law definition for adopted or ART‐ conceived children create legal fictions.33 For example, in Baker & Landon, Reithmuller FM remarks,
It appears clear that the provisions of the State Act [the Status of Children Act 1974 (Vic)] potentially do two things: Section 10D creates a fiction as to parentage, and s.10F removes any legal duties or liabilities that may arise as a result of the biological relationship between the donor and child.34
Since the debates in the late 1960s and early 1970s surrounding the admissibility of blood type and genetic parentage testing (discussed in Chapter 2 above), judges have expressed confidence in the accuracy and forensic benefits of such technologies. In a widely‐cited judgment in the 1970 House of Lords case, S v S, Lord Hodson remarked:
Scientific evidence of blood groups has been available since the early part of this century and the progress of serology has been so rapid that in many cases certainty or near certainty can be reached in the ascertainment of paternity. Why should the
33 Bateman & Kavan [2014] FCCA 2521 (Harman J) [63]. 34 Baker & Landon [2010] FMCAfam 280 (Reithmuller FM) [38].
149 Chapter Four – Biotruth
risk be taken of a judicial decision being made which is factually wrong and may later be demonstrated to be wrong?35
Determinations of legal parentage – whether via the family courts, or administratively decided by the Child Support Agency or Births Deaths and Marriages – have rapidly adapted to embrace DNA testing technologies.36 Once ‘biological parentage’ was understood primarily in terms of genetic parentage, this enabled judges to take a forensic approach to determining legal parentage. For example, in 1994, the High Court affirmed the Full Court of the Family Court’s decision in G & H, with Deane, Dawson and Gaudron JJ remarking that,
given technological advances which have made proof of parentage both simple and, for practical purposes, conclusive, inferences should be drawn from a refusal to submit to testing, free of the reluctance that might be expected if the biological fact, as distinct from its possibility, were to be regarded as involving a grave or serious allegation.37
This forensic approach to legal parentage – as fact rather than legal status – reduces the debate down to a question of which evidence was preferable, contrasting ‘human recollection’, which was ‘frequently inaccurate in relation to matters of this nature’, with the ‘medical’ and ‘biological’ evidence provided by genetic testing.38 As with the introduction of fingerprinting technologies to the courts in the late nineteenth century,39 DNA testing promised to provide reliable identification when human evidence
35 S v McC and M [1970] 3 AC 107, 123 (House of Lords). 36 The logical extension of this approach – universal compulsory paternity testing at birth – has, however, been met with widespread dismay when recently raised by An Ravelingien and Guido Pennings, 'The Right to Know Your Genetic Parents: From Open‐Identity Gamete Donation to Routine Paternity Testing' (2013) 13 The American Journal of Bioethics 33. See, eg, Pepe Lee Chang and Diana Buccafurni‐Huber, 'On the Moral Asymmetry of Gametic Contributions', (2013) 13(5) The American Journal of Bioethics 56; Janet Malek, 'Routine Paternity Testing: Finding the Right Ethical Paradigm' (2013) 13(5) The American Journal of Bioethics 44; Reuven Brandt, 'Why Disclosure of Genetic Ancestry in Misattributed Paternity Cases Should Be Treated Differently From Disclosure in Adoption and Gamete Donation' (2013) 13(5) The American Journal of Bioethics 58. A recent survey of lay attitudes, however, found that 62% of men surveyed and 42% of the women agreed that ‘all children should be given paternity testing soon after birth and the father informed of the result’. Georgia Lowe et al, 'How Should We Deal With Misattributed Paternity? A Survey of Lay Public Attitudes' (2017) 8 American Journal of Bioethics ‐ Empirical Bioethics 234, 236. 37 G v H (1994) 181 CLR 387, [17] per Deane, Dawson and Gaudron JJ (High Court of Australia). 38 Duroux and Martin [1993] FamCA 125 (Ellis, Finn and Joske JJ) [35] per Ellis, Finn and Joske JJ. 39 Rabinow, above n 14.
150 Chapter Four – Biotruth was viewed as untrustworthy. In the case of fingerprinting, it was concern within the India Staff Corps in Bengal about the 'proverbial prevalence of unveracity' of the local people which motivated the implementation of fingerprinting as a method of forensic identification under criminal law.40 In paternity disputes, judges have tended to view genetic testing as preferable to ‘undignified’ enquiries about ‘credibility, condoms and menstrual cycles’ complained of by Fogarty J in G & H.41 In the 2002 UK case, H & A, Thorpe LJ remarked,
… as science has hastened on and as more and more children are born out of marriage it seems to me that the paternity of any child is to be established by science and not by legal presumption or inference.42
The claim that parentage can be determined as a ‘simple scientific reality’ also contributes to the construction of legal parentage as a question of fact rather than law.43 Here the analysis of philosopher of law and science, Susan Haack, is useful.44 As Haack points out, there are significant tensions between scientific and legal ways of knowing:
Science is investigative in character, for example, while the culture of our legal system is strongly adversarial; the sciences search for general principles, while the legal focus is on particular cases; the scientific enterprise is pervasively fallibilist— ie open to revision in the light of new evidence—while the law is concerned to arrive at prompt and final resolutions...45
Science concerns itself with expanding knowledge, whereas law legitimates particular pieces of knowledge as evidence to inform decisions regarding legal status, rights and obligations. Susan Haack also observes that law ‘sometimes tinges scientific concepts with policy considerations’. 46 She gives the example of the way legal notions
40 Ibid. 41 G & H [1993] FamCA 39 (Fogarty, Straus and Wilczek JJ) [3]. 42 Re H & A (Children) [2002] EWCA Civ 383 1154 cited in Letsos & Vakros [2009] FMCAfam 897 [64]. and TNL & CYT [2005] FamCA 77. 43 Bateman & Kavan [2014] FCCA 2521 (Harman J) [67] per Harman FM. 44 Lynch and McNally, above n 14; Lynch et al, above n 18; Michael Lynch, 'Science, Truth, and Forensic Cultures: The Exceptional Legal Status of DNA Evidence' (Pt C) (2013) 44 Studies in History and Philosophy of Biological and Biomedical Sciences 60. 45 Susan Haack, Evidence Matters: Science, Proof, and Truth in the Law (Cambridge University Press, 2014) 79. 46 Ibid 99.
151 Chapter Four – Biotruth of causation tend to get clouded with concerns about incentives and who should bear the cost of particular risks.47 As argued in Part III of this chapter, similar policy concerns are at play in the concept of legal parentage – such as economic arguments about who should bear responsibility for children, which decisions to procreate are ‘responsible’ and what types of family structures or behaviours are important to children’s wellbeing. All of these policy decisions are masked when lawyers and jurists insist that law need only ‘discover’ who are the ‘true’ parents – ie that legal parentage is a metaphysical question about what ‘parent’ truly means. In analysing truth claims, Haack defines factual claims as those which are ‘usually straightforwardly true or else false’, (though there may be some confusion created by the gap between what is true and what is known or proven to be true, and by the adversarial system).48 Legal claims, on the other hand, are those which ‘can be true or false only when construed as implicitly referring to some legal system or systems (and to a time)’.49 Legal claims are therefore subject to ‘indeterminacies of meaning’ and can only be definitely correct or incorrect relative to a given legal system at a given time. In the family law context, the statement, ‘X is a parent of Y’ is a legal claim because whether it is correct or not for a particular factual scenario has changed over time and across legal systems. As discussed in Chapter Three, in current Australian family law, the answer to this question depends not solely on whether X contributed a gamete to Y’s conception, but is affected by multiple factors, including the method of conception, the mother’s relationship status, whether a man has acknowledged a child as ‘his’ child, and who is listed on the birth certificate. While DNA paternity testing can determine the likelihood of a particular person being a genetic progenitor of a child,50 it is law which gives meaning to that finding. Legal parentage is not stable across various legal systems or periods, therefore in
47 Ibid. 48 Susan Haack, 'Truth, Truths, "Truth" and "Truths" in the Law' (2003) 26 Harvard Journal of Law & Public Policy 17, 19. 49 Ibid. 50 Though of course, DNA testing cannot determine definitively whether that person is indeed a progenitor of a particular child – for example, identical twin men may both share a high degree of genetic material with a child, but DNA testing cannot tell us which one of them provided the particular sperm which fertilised the egg contributing to the child’s conception.
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Haack’s taxonomy it is a legal claim rather than a factual claim. For example, in 1971 the Full Court of the Victorian Supreme Court was uncertain whether the husband of a woman who has conceived with donor sperm was the legal parent of the child, but he would unquestionably be a legal parent in 2018 thanks to the various Status of Children Acts.51 Treating legal parentage as a fact conceals the policy choices involved where there are multiple candidates for the position of ‘legal father’. Emily Jackson argues that ‘we should admit that these are matters of choice and judgment, rather than hiding behind a superficially factual inquiry into the identity of a child’s parents’.52 In addition, because this approach elides the distinction between genetic and legal parentage, it makes it impossible for judges to consider the distinct functions which legal parentage serves, and children’s distinct interests in how these functions are carried out. On a ‘factual’ model of legal parentage, disputed paternity children can have access to information about their genetic origins but may lose their legal kinship identity or vice versa. Haack also points out that legal claims are ‘subject to indeterminacies of meaning’ not just in terms of their reliance for meaning on a particular jurisdiction at a particular time, but also because ‘political or rhetorical means’ may affect whether particular legal outcomes are brought into being.53 That unmarried fathers are now legal parents to their genetic progeny is a result of the policy debates and political decisions of the late 1960s and early 1970s which resulted in the Status of Children Acts being rolled out across the Australian states and territories. The trouble with parentage, however, is that many judges, parties and family reporters perceive there to be a natural overlap between the factual claim of being a genetic father and the legal claim of being a legal father. The factual and legal claims are conflated in most cases, but are held distinct in others – such as in the statutory exceptions specifying particular non‐genetic parents as legal parents in situations of
51 Roberts v Roberts [1971] 160 VR, 166 per Winneke CJ, Gillard & Barber JJ (Full Court, Victorian Supreme Court, Winneke CJ, Gillard & Barber JJ). See s 10C(2) of the Status of Children Act 1974 (Vic). 52 Emily Jackson, 'What is a Parent?' in Alison Diduck and Katherine O'Donovan (eds), Feminist Perspectives on Family Law (Routledge, 2006) 59‐74, 70. 53 Haack, 'Truth, Truths, "Truth" and "Truths" in the Law', above n 48.
153 Chapter Four – Biotruth adoption and assisted reproductive treatment.54 Two determinations are being made – as to the child’s genetic parentage, and then legal parentage – but biotruth rhetoric rolls the two questions into one for heterosexually conceived children. We lack the language to separate the two, so that, for example, the Family Law Act refers to genetic parentage testing simply as ‘parentage testing’.55 Former Family Court Judge, Richard Chisholm observed in a 2010 article that Fogarty J’s characterisation of parentage as ‘now a medical and not a legal issue’ was ‘not literally true’ because:
Determining parentage for legal purposes involves the application of rules of law and sometimes the making of court decisions and … the process can still pose difficult problems.56
Nonetheless, toward the end of the same article, Chisholm remarks that the point of a parentage testing order is ‘simply to determine parentage, a question of fact’.57 This time, Chisholm did not qualify ‘parentage’ to mean ‘parentage for legal purposes’ – nor did he address the difficulty that once this ‘question of fact’ is determined via genetic parentage testing, judges generally treat it automatically as a determination of parentage for legal purposes. Law co‐opts science when it serves a policy purpose (such as restricting ‘parent’ to two people) while ignoring complexities or contradictory scientific knowledges. There is a pragmatism here. Law has to decide who can and cannot make claims on the basis of a parent‐child relationship (or kinship relationship) and simple bright line rules are much easier to administer. The problem is when law forgets its own artificiality and claims that it can know the ‘truth’ about parentage, while assuming that legal parentage should (unless statutory exceptions apply) be simply a reflection of one particular set of bioinformation – at present, genetic DNA parentage testing. Like any other area of the law, legal
54 See, eg, ss 4 and 60H of the Family Law Act (Cth) ss 10c, 10D, 10E, 19 and 21 of the Status of Children Act 1974 (Vic) and s 53 of the Adoption Act 1984 (Vic). 55 Family Law Act 1975 (Cth), Div 12, Subdivision E Parentage Evidence. 56 Richard Chisholm, 'Parentage: Some Testing Problems ' (2010) 24 Australian Journal of Family Law 242, 243. 57 Ibid 252.
154 Chapter Four – Biotruth parentage requires scrutiny of its policy goals and particularly its alignment or otherwise with the broader objective in Part VII of the Family Law Act of making the best interests of the child paramount.58 To create that critical space, it is necessary to challenge biotruth rhetoric and to lever apart fact and law, and the false assumptions which have merged them in the case of legal parentage. Treating legal parentage as fact rather than law also creates difficulties with justifying exceptions for adoption and ART‐conceived children. Somehow these children have to be transposed into biogenetic children via legal fictions, rather than admitting that this is a legal determination. In Bateman & Kavan, Harman J held that s 60H ‘“deems” certain persons (i.e. the partners of birth mothers) to be parents rather than seeking to exclude others who are parents (such as biological parents).’59 In distinguishing between those who ‘are parents’ and those ‘deemed to be parents’, Harman J implies that only biological parents really (ie metaphysically) ‘are parents’, though others can be legalistically ‘deemed to be parents’. This distinction between ‘parents’ and ‘deemed parents’ relies on what Ngaire Naffine might describe as a Metaphysical notion of legal parentage which tries to capture something ‘real’ or essential about being a parent.60 In relation to similar claims that legal personhood should reflect something essential about being human, Naffine reflects:
This sets law a very large metaphysical task. For it suggests that law is always confronted with prior natural subjects of rights (real persons before the law in both a temporal and spatial sense) to which personifying legal rights and duties must be fitted in a manner which honours their nature. The implication is that law must find, rather than make or conceptualise, its subject, its person, that law’s task is to divine the true metaphysical person and attach rights and duties in a manner which is fully appropriate to, and consistent with, that nature.61
58 Family Law Act 1975 (Cth) s 60B. 59 Bateman & Kavan [2014] FCCA 2521 (Harman J) [54]. This represents an ‘enlarging’ approach to s 60H, as discussed in Chapter Three. 60 Ngaire Naffine, Law's Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Hart Publishing, 2009). 61 Ibid 2.
155 Chapter Four – Biotruth
Faced with the complexity and changeability of human relationships, it is understandable that judges and policy makers keen to secure stability for children might feel that tethering legal kinship identity to knowledge of genetic paternity offers a simple and clear‐cut resolution. This is a common approach across the common law countries, with Carol Smart remarking, ‘As far as genetic truth is concerned, it is clear that both family law and policy have shifted to accommodate the new trend with remarkable speed.’62 Yet, as Elizabeth Bartholet points out, determining legal parentage inevitably involves a ‘societal choice’ in that it is ultimately law, rather than a DNA laboratory, which identifies a child’s legal parents.63 While genetic parentage may play a role in that choice, to pretend that no choice is being made obscures the policy choices at play, and fails to explain why law chooses to recognize non‐genetic parents in some circumstances. It is also vital that the consequences of that social choice are understood, particularly where it may involve the severing of a legal relationship between a child and a functional parent and their extended kin network. Understanding parentage as ‘fact’ rather than law also means that judges are less equipped to deal with children’s knowledge of their genetic parentage origins, and their expertise on their lived parent‐child relationships, as distinct issues. Rather, the DNA results are seen as ‘reality’ and the children’s lived experience of their family relationships as having ‘lived a lie’ – rather than as representing two distinct and co‐ existing truths: one about the child’s genetic origins, and the other about the child’s social parenting relationships. Biotruth rhetoric therefore works to impose a hierarchy of knowledge in which genetic information is legitimated by the court as ‘authoritative
62 Smart, 'Family Secrets: Law and Understandings of Openness in Everyday Relationships', above n 12, 564. 63 Elizabeth Bartholet, 'Guiding Principles for Picking Parents' (2004) 27 Harvard Women's Law Journal 323, 323.
156 Chapter Four – Biotruth knowledge’, and other ways of knowing – such as children’s own perspectives on whom they relate to and rely on as family – are dismissed.64
B ‘Biological’ Parentage is complicated
The notion that legal parentage is a question of fact rather than law is supported by two key assumptions which family law judges and legislators make about the science surrounding genetics, heredity and identity. The first is that it is hereditary genetic biological connections which matter, and which legal parentage should reflect. Contributing one‐half of the nuclear DNA for an embryo is, however, only one type of biological (or even genetic) relationship. When it comes to connections between parent and child, genetic connections between progenitor and offspring have colonised the meaning of ‘biological’. As Jenny Payne notes, developments in assisted reproductive technologies mean that there may be multiple candidates even for biological parenthood, for example, ‘genetic motherhood, gestational motherhood, and even, some might argue, mitochondrial motherhood’.65 Julie McCandless and Sally Sheldon note in the UK context:
The example of mitochondrial donation also provided a clear illustration of the fact that there is no objective, scientific base on which we can hope to construct a perfect regulatory edifice. Rather the definition of ‘genetic parenthood’ itself is complex and underpinned by value judgments…66
Even while Australian judges are describing genetic parentage as a ‘simple scientific reality’,67 genetic science is moving towards a more complex understanding of the interaction between genes, life experiences, identity and interactions with others.68 Jonathan Herring and Charles Foster describe this as an unfortunate ‘creep into the law of genetic reductionism at a time when that simplistic view of human identity is being
64 Jordan, above n 25. 65 Jenny Gunnarsson Payne, 'Grammars of Kinship: Biological Motherhood and Assisted Reproduction in the Age of Epigenetics' (2016) 41 Signs: Journal of Women in Culture and Society 483. 66 McCandless and Sheldon, above n 13. 67 Bateman & Kavan [2014] FCCA 2521 (Harman J) [67]. 68 Susan Kelly, above n 23.
157 Chapter Four – Biotruth systematically abandoned by biology’.69 For example, Clarke et al reject the notion of ‘genetics revealing a deep, inner, causal truth’, arguing that such assumptions are a poor fit with contemporary genetics.70 The newer genetic science instead suggests
... complex, relayed, dynamic systems of networks of gene‐gene interactions, gene‐ environment reactions and highly individualised gene expression and regulation that together produce future body states.71
This dynamism and interaction between the social and the biological is also apparent in findings from neuropsychology which have demonstrated that social relationships – particularly attachment relationships between an infant or young child and their primary carer(s) – are fundamental in neurological development, affecting both the physical structure of the brain and its biochemistry.72 These new fields of knowledge challenge the distinctions previously drawn between nature and nurture, and between the ‘social’ and the ‘natural’. Rather, they point towards a dynamic between the two – with the natural shaping the social and the social in turn shaping our natural structures and functions, so that, as Atkins points out, ‘the meaning of supposedly objective, “natural” physical states and attributes is partly culturally constructed’.73 The dichotomy of ‘natural’ versus ‘constructed’ dissolves. Indeed it is the ongoing emotional interchanges between a child and their primary caregivers that are critical in ‘shaping children’s psycho‐social development, including social, cognitive, emotional, learning and long‐term mental health outcomes’.74 Finally, the emerging research on the significance of the microbiome for influencing immunity, health and even behaviour suggests that cohabiting with, and carrying out the messy and intimate work of parenting small children can create
69 Jonathan Herring and Charles Foster, '“Please Don’t Tell Me”: The Right Not to Know' (2012) 21 Cambridge Quarterly of Healthcare Ethics 20, 25. 70 Clarke et al, above n 7, 26. 71 Ibid. See also Andrew Webster, 'Innovative Genetic Technologies, Governance and Social Accountability' in Paul Atkinson, Peter Glasner and Margaret Lock (eds), Handbook of Genetics and Society: Mapping the Genomic Era (Routledge, 2009) 486, 488. 72 Allan Schore and Jennifer McIntosh, 'Family Law and the Neuroscience of Attachment, Part 1' (2011 ) 49 Family Court Review 501. 73 Kim Atkins, 'Re Alex: Narrative Identity and the Case of Gender Dysphoria' (2005) 14 Griffith Law Review 1, 8. 74 Liz Trinder, 'What Might Children Mean by a “Meaningful Relationship”?' (2009) 15 Journal of Family Studies 20, 20.
158 Chapter Four – Biotruth biological connection irrespective of any genetic similarity.75 The growing fields of epigenetics and microbiology indicate that environmental factors (including gestation, birth and other social relationships) have very significant effects on whether particular genes are activated, how a child’s microbiome develops, and therefore on the child’s immune and endocrine systems.76 The claim to scientific ‘truth’ masks the profoundly social process of attaching significance and legal meaning to particular scientifically‐observed facts. Biological facts do not acquire significance and legal meaning on their own. As anthropologist Jeanette Edwards notes, ‘“Biological facts” need to be socially activated, which suggests that the biological is deeply social and that the common and convenient divide between the social and the biological obscures more than it reveals’.77 The social meaning attached to particular biological facts in helping decide parent‐child relationships differs among cultures. For example, Jeanette Edwards cites Mary Weismantel’s study of the Zumbaguan people, in Ecuador, which documents their view that there were ‘several kinds of parents and several kinds of children’ – kinship bonds created via conception or pregnancy, or alternatively by feeding the child or teaching them ‘to speak and to know’. 78 In scientific terms, all of these contributions have biological effects which help shape the child – in terms of their physical wellbeing, neurological development and social connections. Yet Australian family law judges persistently use the term ‘biological’ [parent] to refer exclusively to genetic progenitors of a child. For example, one judge
75 Elizabeth A Archie and Jenny Tung, 'Social Behavior and the Microbiome' (2015) 6 Current Opinion in Behavioral Sciences 28; Gerard Clarke et al, 'Minireview: Gut Microbiota: The Neglected Endocrine Organ' (2014) 28 Molecular Endocrinology 1221; Se Jin Song et al, 'Cohabiting Family Members Share Microbiota with One Another and With Their Dogs' (2013) eLife e00458. 76 Alan Hayes, 'Social Science and Family Law: From Fallacies and Fads to the Facts of the Matter' in Alan Hayes and Daryl Higgins (eds), Families, Policy and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014) 283‐295, 290. Gerard Clarke et al, 'Minireview: Gut Microbiota: The Neglected Endocrine Organ' (2014) 28 Molecular endocrinology 1221 77 Jeanette Edwards, 'Undoing Kinship' in Susanna Graham et al (eds), Relatedness in Assisted Reproduction (Cambridge University Press, 2014) 45, 46. 78 Ibid 48.
159 Chapter Four – Biotruth suggested that a mother who had conceived using donor eggs (and then gestated, birthed, and raised the three children) had 'no biological connection' to them.79 Some of these complexities around the emphasis on contributing a gamete to conception over other forms of genetic or biological relatedness arose in the case of Withers & Bates.80 There, the mother revealed in 2003 (when the child was nine years old) that she had had an affair with her ex‐partner’s father.81 Her husband sought paternity testing of the child and the test result indicated that there was a 99.998% likelihood that he was the child’s genetic progenitor, noting that ‘close blood relative of the putative father (eg brother) may have a similar chance of paternity’.82 Mr Bates accepted this result as confirmation of his parentage, and he continued with his application for parenting orders, eventually obtaining consent orders for a week‐about shared care arrangement. These orders referred to him as ‘the father’. Then in 2010, Ms Withers sought to discharge the consent orders, and replace them with an order that the child (now sixteen) live with her and spend time and communicate with the father ‘as agreed between the Father and (the child) from time to time’.83 She also sought a declaration from the court that the child had been living with her since 21 December 2006 – with Mr Bates alleging that this order was motivated by a desire to claim back‐dated child support from that date.84 In response, he sought a s 107 declaration under the Child Support (Assessment) Act 1989 (Cth) that he was not liable to be assessed for child support because he was ‘not the father of the said child’.85 Mr Bates also joined his own father to the proceedings and sought orders for the mother, the child and his own father to take part in further DNA parentage testing in order to test whether he or his father was the genetic progenitor of the child. The court dismissed his application on the basis that he had chosen to discontinue proceedings disputing parentage in 2003, and had subsequently signed
79 Colvan & Colvan [2015] FCCA 99 [20]. 80 Withers & Bates & Anor [2011] FMCAfam 730. 81 Ibid. 82 Ibid [5]. 83 Ibid [9]. 84 Ibid [37]. 85 Ibid [10].
160 Chapter Four – Biotruth documents ‘which identified him as the child’s father’.86 Roberts FM found that Mr Bates could not ‘now raise an issue that he was fully aware of in 2003/04 and chose not to pursue at that time’,87 suggesting his claim was barred either on the basis of issue estoppel or abuse of process, or both. The fact that Mr Bates’ application for further paternity testing was refused only on procedural grounds undermines the argument that using DNA testing to determine legal parentage is done for the benefit of the child. Even if his sperm had not been involved in her conception, Mr Bates would have had a high level of genetic relatedness with his daughter. He would have been able to answer any queries she might have had regarding heritable diseases, cultural heritage, and family resemblances or mannerisms from the paternal side of his family. Yet had Mr Bates raised this query in 2003, he may well have been successful in obtaining orders for further DNA testing to compare his result with the genetic match between the daughter and his father. This illustrates the way in which the family law courts treat genetic parentage testing not as a way to gather information about a child’s relationships (genetic or otherwise) but as a forensic technology to resolve a whodunit – whose sperm was responsible for conception? In that forensic framing, the child is mere evidence in a dispute between adults rather than being a party or participant in the dispute. The child only enters the equation as a financial obligation when considering men’s legal claims and responsibilities connected with conception. As Melanie Jacobs notes in the US, to imagine paternity as something from which men can be ‘exonerated’ ‘ignores the crucial difference between the criminal and family law contexts: the presence and best interests of a child’.88 This narrow framing confining the meaning of ‘biological parent’ to a person who has provided a gamete at conception therefore limits
86 Ibid [35]. 87 Ibid. 88 Melanie B Jacobs, 'When Daddy Doesn't Want To Be Daddy Anymore: An Argument Against Paternity Fraud Claims' (2004) 16(193) Yale Journal of Law and Feminism 193, 195. See also discussion in Mary Anderlik and Mark Rothstein, 'DNA‐Based Identity Testing and the Future of the Family: A Research Agenda' (2002) 28 American Journal of Law & Medicine 215, 220.
161 Chapter Four – Biotruth the ability of parentage laws to prioritise the child whose parentage is at issue and their wellbeing. The notion of genetic parentage as a simple and universal way of determining legal parentage also draws, however, on human rights ideals of universal rights which accrue naturally to everyone upon birth as a function of our biological sameness. In a period in which adult relationships are becoming more complex, dynamic and diverse, judges and legal scholars have been apparently attracted to the perceived simplicity, stability and universality of DNA, as an ‘ever‐fixed mark’ of identity and relatedness.89 For example, John Eekelaar idealises a child’s genetic parentage as a ‘physical truth’ which ‘provides the raw material of the world into which the new member is introduced’ in contrast to the ‘legal truths’ created by adults which leave children open to ‘manipulation’.90 He therefore imagines a child’s DNA as a cellular patrimony, enabling children to stake their claims against ‘those responsible for their being’ – however, he uses a narrow Naturalistic notion of responsibility in terms of being the source of genetic material.91 As discussed in Chapter Three, birth registration relies on relationship information and presumptions of parentage arising from particular social facts rather than bioinformation.92 Therefore, a biotruth approach to the common law definition of ‘parent’ may in fact create instability around legal parentage when genetic and social parents do not correspond, for example, for misattributed paternity children or for children in kinship care or kupai omasker arrangements. As discussed in further detail in Chapter Six, where courts declare that a misattributed father is no longer a child’s legal father, children sometimes experience the loss of a legal father as ‘de‐kinning’ – in the sense of losing a social parent, losing a legal kinship relationship with that person and their kin, and/or losing their own kinship identity.93 This essentialist view conflating genetic progenitors and legal parents may also be appealing in that the equal genetic contributions of sperm and egg accord neatly with
89 Sonnet 116, William Shakespeare, Shakespeare's Sonnets (Harper & Brothers, 1890) 105. 90 John Eekelaar, Family Law and Personal Life (Oxford University Press, 2007) 74‐5. 91 Ibid 75. 92 There appears to be no political appetite for legislating to require universal genetic parentage testing at birth. For discussion of this prospect, see Ravelingien and Pennings, above n 36. 93 Smart, 'Family Secrets: Law and Understandings of Openness in Everyday Relationships', above n 12.
162 Chapter Four – Biotruth family law’s aspirations towards gender equality and neutrality between mothers and fathers, particularly when the reform process has been framed within ideas of ‘gender wars’.94 Biotruth’s aspiration for gender equality in reproduction requires, however, that it overlook many of the structural realities – both biological and social – which mark human reproduction and family‐making. While sperm and egg may contribute equally to the nuclear chromosomes of any resulting embryo, the investments which the different parties make towards pregnancy, birth and child care are highly gendered. In a world where governments are tasked with monitoring and managing multitudinous and diverse populations and with determining and regulating complex family relationships, the notion that legal persons can be mapped directly onto (and therefore identified as) genetic ‘persons’ is an attractive one. While family law’s recourse to genetic definitions of family in the face of increasing complexity in family practices is understandable, it may also represent a resort to an arbitrary deciding factor when the relevant factors are intractable and the court wishes to find a ‘neutral’ solution. Certainly, the cases indicate that despite the understanding of biotruth as neutral, parties nonetheless utilise it in strikingly instrumental ways – mothers seeking to use non‐paternity to block non‐biogenetic fathers from their children’s lives, and misattributed fathers who are willing to parent a non‐genetically related child but only as long as their relationship with the mother persists.95 As Jane Fortin has observed in the UK context, these disputes ‘have little to do with children's right to knowledge of their origins’ and rest on the ‘false assumption that the biological link between child and parent can magically transform a previously non‐existent relationship into a fruitful one for both parties’.96 Fortin argues that ‘[t]hese are adult‐centred arguments which spring
94 Helen Rhoades, 'Children’s Needs and “Gender Wars”: The Paradox of Parenting Law Reform' (2010) 24 Australian Journal of Family Law 160. Even then, further research on mitochondria indicates that these genetic contributions are not strictly equal, as all the mitochondrial DNA (controlling energy within the cell rather than resemblances and traits) are supplied by the egg: John B Appleby and Anja J Karnein, 'On the Moral Importance of Genetic Ties in Families' in Susanna Graham et al (eds), Relatedness in Assisted Reproduction (Cambridge University Press, 2014), 79. 95 See, for example, Madsen & Kaplan [2012] FMCAfam 251; Brianna v Brianna [2010] FamCAFC 97 (Bryant CJ, Finn and Thackray JJ). 96 Jane Fortin, 'Children's right to know their origins ‐ too far, too fast?' (2009) 21 Child and Family Law Quarterly 336, 354.
163 Chapter Four – Biotruth from adult‐centred disputes over children who are treated as the property of those who can establish a biological connectedness’.97 The genetic emphasis within the common law definition of ‘parent’ not only reflects a simplistic notion of ‘biological’ or ‘genetic’ parentage but also combines scientism and essentialism. Haack defines scientism as ‘an exaggerated deference towards science, an excessive readiness to accept as authoritative any claim made by the sciences and to dismiss every criticism of science or its practitioners as anti‐scientific prejudice’.98 It is essentialist in that it imagines that the complexities of human life can be understood as a function of their smallest indivisible units of our genetic material. This atomistic tendency has been a feature of twentieth century science – a search for the smallest indivisible units of matter, life and information ‐ the atom, the gene, the byte.99 Yet the more scientific knowledge zooms in, the greater the gap between the object of study and our human lives. As Raphael Falk notes,
There is a paradox lying at the heart of the study of heredity. To understand the ways in which features are passed down from one generation to the next, we have to dig deeper and deeper into the ultimate nature of things – from organisms, to genes, to molecules. And yet as we do this, increasingly we find we are out of focus with our subjects. What has any of this to do with the living, breathing organisms with which we started? Organisms are living. Molecules are not. How do we relate one to the other?100
In hitching a child’s legal parentage (a crucial aspect of their legal personhood) to conception at a molecular level, we are necessarily out of focus with the child in question as a relational being and as a legal subject.
C ‘Identity’ is more complicated
The disputed paternity judgments also reveal a strong assumption that ‘identity’ means ‘inherited genetic identity’. The notion of the genetically unique individual accords neatly with the liberal notion of the unique and independent legal person. This
97 Ibid. 98 Susan Haack, Defending Science ‐ Within Reason: Between Scientism and Cynicism (Prometheus, 2007) 348. 99Siddhartha Mukherjee, The Gene ‐ An Intimate History (Bodley Head, 2016) 9. 100 Raphael Falk, Genetic Analysis: A History of Genetic Thinking (Cambridge University Press, 2011) 1.
164 Chapter Four – Biotruth section unpicks two key steps within this assumption in the context of parentage disputes: the first conflating genetic identity with personal identity, and the second taking this essentialised notion of identity to conflate genetic kinship identity with legal kinship identity. It then considers the effect of these assumptions on the legal personhood of the children involved. Both criminal and family law uses of genetic testing tend to assume that a distinct DNA ‘fingerprint’ maps directly to one distinct legal person. Yet genetic science tells a more complex story. A number of naturally occurring phenomena, such as identical twins and genetic chimeras,101 for example, confound law’s understanding of a one‐to‐ one relationship between person and a genome.102 There is also evidence that the human genome consists not just of genes acquired from our genetic progenitors, but also of ‘horizontally acquired’ genes from bacteria, funghi and viruses.103 Bacterial cells living on and in the average human body are currently estimated to equal or outnumber the human cells,104 and have such significant effects on our biochemistry that they function as a ‘virtual endocrine organ’.105 Therefore, even at a molecular level, inherited
101 People whose bodies contain two or more distinct genomes due to a fusing of embryos after conception, or due to chromosomes from a fetus continuing to replicate within the mother’s body during and after pregnancy: Robert Martone, ‘Scientists Discover Children's Cells Living in Mothers' Brains’, Scientific American (online), 4 December 2012
165 Chapter Four – Biotruth genetic material cannot exclusively determine our individual ‘identity’ (if such a thing could exist at a molecular level). Many of the disputed paternity judgments rely on the idea that knowledge of genetic parentage is essential to children because genetic identity represents a child’s ‘true’ identity. In F v R, in 1992, Butler J remarked that:
Modern thinking is firmly of the view that a child should know of its parentage and that everything should be done to make the knowledge available to a child. Without this knowledge the child's personal sense of identity is in doubt and never resolved, leaving confusion or doubt as a lasting heritage.106
In many of these judgments, judges use the term ‘identity’ to refer exclusively to genetic parentage identity. For example in G & H, Brennan and McHugh JJ suggested that genetic paternity ‘might well be of the greatest significance to the child in establishing his or her lifetime identity’.107 In Brianna & Brianna, Bryant CJ remarked that ‘his Honour found that the child’s identity is something which he should know’ – re‐ phrasing Hedley J’s original remark (‘this matter of paternity should be resolved’) and in the process conflating genetic paternity and the child’s identity. Bryant CJ also cited the High Court in Magill to assert that, ‘at least in the view of the High Court, a child knowing their identity is attributed to a child’s welfare’.108 In a recent Federal Circuit Court case, the genetic father sought to meet and have time with the child in circumstances where the mother alleged conception occurred as a result of rape and had therefore excluded him from any knowledge of the child’s birth and from any contact with the then four‐year‐old child. Brown J found that it was ‘more likely than not that the rape did not occur’ due to the number of ‘inexplicable coincidences’ in the mother’s account.109 Nonetheless, Brown J found that the ‘total lack of communication and trust between the parties’ and hostility to one another would create an ‘extraordinary level of tension’ so that it was not in the child’s best interests
106 F & R [No. 2] (1992) 15 Fam LR, 79,275. 107 G v H (1994) 181 CLR 387, 391 (Brennan and McHugh JJ). 108 Brianna v Brianna [2010] FamCAFC 97 [26] (Bryant CJ, Finn and Thackray JJ). 109 Morgan & Carter [2016] FCCA 289 [366] (Brown J).
166 Chapter Four – Biotruth to order him to spend time with the genetic father.110 In reaching that conclusion, Brown J remarked:
In this context, in generic terms, I accept that children gain a sense of personal identity by interacting with their parents – their biological instigators with whom they share a genetic inheritance – in a variety of settings and circumstances. As such it is a significant thing to deprive a child, of any age, of the opportunity to know a parent at first‐hand. It is a significant and fundamental right, which arises because the bond between a parent and a child is the most fundamental and important of all human connections.111
This is ‘conflation of heritage and identity’ is fostered within popular culture – for example, in the DNA testing of participants in the television programme (both British and Australian) versions, Who do you think you are?112 Leckey and Edwards suggest that treating genetic heritage as ‘essential’ to individual identity relies on a theory of identity which fails to capture the complexity and dynamism of human identity‐making:
… in the conflation of genetics and identity, kinship becomes knowledge and identity gets disaggregated and unknotted. From a bundle of states and statuses just one strand of identity is singled out: knowing the identity of the person who donated the gamete which led to your birth means knowing where you came from, means knowing who you are. But for most people the world over, including donor‐ conceived people, identity is a complex matrix of social positions: it is neither acquired in one moment nor in one event. Identity is not usually a steady state, nor fixed, singular or given.113
Recourse to rigid biological definitions may be a common judicial response to the complexity of human identity. Certainly, it has also characterised some judicial responses to the task of determining a person’s sex for the purposes of marriage or amendment of their birth certificates. For example, in the key 1971 UK case of Corbett
110 Ibid [435] (Brown J). 111 Ibid [432] (Brown J). 112 Edwards, above n 76. 113 Ibid.
167 Chapter Four – Biotruth v Corbett (considering the status between Arthur Corbett and April Ashley, a post‐ operative male‐to‐female transwoman) Ormrod J considered
… clear evidence that even at a biological level sex is complex, shifting and sometimes indeterminate, but the decision itself asserted a rigid biological definition and repeatedly appealed to a concept of 'true sex' as a biological given.114
On this approach, a person’s sex was assumed to be fixed at birth as an essential and immutable biological characteristic.115 Since 1971, courts and legislatures in the UK and Australian jurisdictions have shifted from this ‘essentialist view according to which gender identity is regarded as a direct expression of bodily sex’, towards what philosopher Kim Atkins terms a ‘practical and discursive conception of identity’.116 Like an adverse genetic diagnosis, or lack of legal recognition of your gender identity, loss of a legal relationship with a misattributed father may create a ‘profound alienation from personal embodied experience’.117 Our identity is not defined unilaterally but in dialogue with others. As Atkins argues:
On the self‐constitution view, identity involves agency; it entails self‐constructive activity on the part of the person whose identity is at issue. ... While this model gives a central, constitutive role to the first‐person perspective (and emphasises the point that identity is a form of self‐understanding), it also gives a central role to the view that others have of us, and to the view of ourselves as one person among others.118
114 Aileen Kennedy, 'Gender Identity: Reassessing the Definition of Sex and Gender' (2013) 38 Alternative Law Journal 186, 187. 115 Laura Greenfell and Anne Hewitt, 'Gender Regulation: Restrictive, Facilitative or Transformative Laws' (2012) 34 Sydney Law Review 761, 765. 116 Atkins, above n 72, 1. 117 Roxanne Mykitiuk, 'Public Bodies, Private Parts: Genetics in a Post‐Keynsian Era' in Judy Fudge and Brenda Cossman (eds), Privatization, Law, and the Challenge of Feminism (University of Toronto Press, 2002) 311, 349. 118 Atkins, above n 72, 7.
168 Chapter Four – Biotruth
Along similar lines, Baylis suggests that ‘[t]here is no true self, only a dynamic socially[,] culturally and politically constituted self that is historically situated’.119 As Naffine notes, this relational aspect is a key feature of being a legal person rather than just an object.120 In contrast, in the area of legal parentage, courts have persisted in taking an essentialist view of legal identity as primarily determined by genetic identity. Yet this view may also overstate the stability of genetic identity, as well as its relevance for personal identity. Aside from failing to accurately describe human identity, essentialism is tied up with oppression because it takes one particular biological feature of a person or group of persons, and uses it to define them or treat them in ways that reinforce historical inequalities in power. For example, in South Africa under apartheid, it was undeniably true that there were physical and cultural differences among South Africans. One way the regime oppressed people was by coding these differences into distinct racial categories and used these invented categories to reinforce historical colonial power inequalities and transcribe them into the modern legal and social ordering of South African society.121 Essentialism, in its claims to naturalness, obscures the significant amount of cultural interpretation which goes into extrapolating ‘the facts of nature’ into social structures and legal definitions. In the process it denies individuals the possibility of ‘agentive identity’ – being an agent in the way their kinship identity is recognised and formalised by law.122 In the case of disputed paternity children, the imposition of a
119 Francoise Baylis, 'The Self in Situ: A Relational Account of Personal Identity' in Jocelyn Downie and Jennifer J Llewellyn (eds), Being Relational: Reflections on Relational Theory and Health Law (University of British Columbia Press, 2012) 109‐131, 123. 120 Ngaire Naffine, 'Review Essay: The Liberal Legal Individual Accused: The Relational Case' (2014) 29 Canadian Journal of Law and Society 123, 129. 121 Though, as Deborah Posel notes, ‘[d]ifferent laws invoked racial categories in variable, often inconsistent, ways’. Deborah Posel, 'What's in a Name? Racial Categorisations Under Apartheid and Their Afterlife' (2001) 47 Transformation: Critical Perspectives on Southern Africa 50. See also Audrey Smedley and Brian D Smedley, 'Race as Biology is Fiction, Racism as a Social Problem is Real: Anthropological and Historical Perspectives on the Social Construction of Race' (2005 ) 60 American Psychologist 16. 122 Allison James, 'From the Child's Point of View: Issues in the Social Construction of Childhood' in Catherine Panter‐Brick (ed), Biosocial Perspectives on Children (Cambridge University Press, 1998) 45, 47. On the issue of agentive identity, see Helen Riley, Identity and Genetic Origins: An Ethical Exploration of the Late Discovery of Adoptive and Donor‐Insemination Offspring Status (Queensland University of Technology, 2012).
169 Chapter Four – Biotruth genetic identity to overwrite their previous legal and/or social identity as a child of a particular man and kin of his kin fits within Francoise Baylis’ relational notion of oppression as others ascribing an identity or character to us which eclipses or ignores our own self‐assessment.123 Attaching legal kinship identity to genetic parentage identity also means that the child him or herself has no impact on their legal parentage and how it shapes their legal kinship identity. The ‘truth’ pre‐dates the child, and exists independently of the child’s relationships, experiences and actions. Where testing reveals a child’s genetic parentage to be at odds with the child’s social / legal kinship identity, the law takes it for granted that the genetic parentage will prevail ‐ and asserts that the child has been ‘living a lie’124 ‐ that the experience, identity and relationships experienced up until that point are retrospectively invalidated.125 The child is, instead, merely a product of conception ‐ an object rather than a subject of law. While family law has abandoned the use of language which construes children as property of their parents, these notions persist more subtly via law’s use of genetic science to construe children as the products of sexual encounters, rather than as legal and social actors whose bonds are created via interpersonal relationships. From a relational perspective, it is arguably dehumanising to use a person’s own bioinformation as a basis for stripping them of legal connections and interests. The child is in effect treated as a piece of evidence, so that their legal kinship identity and relationships are made dependent on the coital acts which led to their conception, rather than on their bonds with and reliance on lived family. As Martha Fineman argues, within the norm of what she calls ‘the sexual family’
the child is an abstraction, significant for assessing the status of the adults – for measuring the dimensions of power and control lost or accumulated in the symbolic
123 Baylis, above n 116. Discussed in Naffine, 'Review Essay: The Liberal Legal Individual Accused: The Relational Case', above n 17. 124 Re H (Paternity – Blood tests) [1996] 4 All ER 28 44 (Ward LJ, Neill LJ agreeing). 125 Some late discovery donor conceived or adopted people report feeling that their life was ‘a lie’. These perspectives and their relationship with legal parentage and personhood is discussed in detail in Chapter Six.
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struggle between men and women in which family is a primary contemporary background.126
To make a legal kinship relationship with a child conditional upon laboratory confirmation that the child is a genetic offspring is not only at odds with the ideal of parenting as an unconditional exercise, but it also suggests a fundamental denial of the child’s personhood.
D Justice for who?
Biotruth bolsters the current model of legal parentage with not just scientific authority, but also legal authority in terms of truth being inherently connected with the more abstract principle of justice. The assumption that justice requires legal parentage to reflect a child’s genetic progenitors raises important policy questions about the nature of this justice – and whose claims for justice are prioritised. For example, Lord Denning MR, in the UK case of S v S in 1970 remarked:
In my opinion, when a court is asked to decide whether a child is legitimate or not, it should have before it the best evidence which is available. It should decide on all the evidence, and not on half of it. There is at hand in these days expert scientific evidence ‐ by means of a blood test ‐ which can in most cases resolve the issue conclusively. In the absence of strong reason to the contrary, a blood test should be made available. The interests of justice so require.127
Lord Denning MR found that blood tests to assess genetic paternity were in the child’s interests in that case, but also suggested that even if he had not reached that conclusion, the interests of justice in ‘truth’ was an ‘overriding interest’ which must be considered ‘over and above all the interests of the child’.128 When the case came to the
126 Fineman uses the term ‘the sexual family’ to describe the family model defined by the sexual relationship between mother and father, rather than relationships of care and dependence, such as parent and child. Martha Fineman, The Neutered Mother, the Sexual Family, and other Twentieth Century Tragedies (Routledge, 1995) 9. 127 S v McC (formerly S) and M (S intervening) [1970] 1 All ER 1162.Affirmed in S v McC and M [1970] 3 AC 107 (House of Lords). Cited in TNL & CYT [2005] FamCA 77; Brianna v Brianna [2010] FamCAFC 97 (Bryant CJ, Finn and Thackray JJ). 128 S v McC (formerly S) and M (S intervening) [1970] 1 All ER 1162.
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House of Lords, however, Lord Hodson instead proposed that the interests of the child and the interests of justice in the truth were aligned:
The interests of justice in the abstract are best served by the ascertainment of the truth and there must be few cases where the interests of children can be shown to be best served by the suppression of truth.129
In contrast, in the Australian High Court case of Re F, then Gibbs CJ suggested that (at least in a constitutional context) it was justice to the ‘true parent’ [implied to mean the genetic progenitor rather than the parent who had raised the child from birth] which required a biological interpretation of ‘child of the marriage’.130 This notion of ‘scientific’ proof as serving justice has persisted within the courts. For example, in Bateman & Kavan, the mother sought a declaration that Mr Kavan was a parent for the purposes of child support where conception was via assisted reproductive treatment after their de facto relationship had ended, but there were conflicting accounts about whether Mr Kavan was providing sperm as a donor or as a prospective parent. After a long discussion of the relevant legislation, Harman J focused instead on the putative father’s contribution of sperm – equating it to ‘reality’ and ‘justice’:
Ultimately, I am satisfied that to ignore the simple scientific reality of this child’s conception would be an injustice.131
Where there was a possibility that information regarding a child’s likely genetic parentage had been concealed, judges (and litigants) sometimes framed it as ‘fraud’.132 By defining biogenetic parentage as ‘the truth’, law treats parents as deceptive if they decide to parent and seek legal protection of that parenting outside the biogenetic model without the formal authorisation provided by adoption. For example, in Baker
129 S v McC and M [1970] 3 AC 107 123 (House of Lords). 130 Re F, ex parte F (1986) 161 CLR 376 [11] (Gibbs CJ, Wilson J, Brennan J, Dawson J, Mason J, Deane J). 131 Bateman & Kavan [2014] FCCA 2521 [85] (Harman J). 132 Wang & Lo [2014] FCCA 1624 [39].
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& Boehm & Deputy Child Support Registrar, (discussed above), Dawe J framed the husband’s actions in claiming his wife’s child as his own as ‘wrong’:
The husband falsely signed an application placing his name on the birth certificate of the child as the father of the child. He knew what he was doing was wrong when he did it. Later he further signed a document asserting he was the father of the child when legitimation of the child was effected following upon the marriage of the husband and wife. Again he knew that what he was signing was false.133
Appeals to truth as a necessary condition for justice nevertheless fail to justify a preference for the common law definition of ‘parent’ to follow simple genetic truth over a more complex relational truth. The side effect of using truth rhetoric to authorise genetic knowledge is that the child’s knowledge of whom they regard and rely on as their parent is dismissed as ‘living a lie’,134 or the child themselves is dismissed as a ‘fake’ child.135 The impacts of this dismissal of children’s perspectives on their own parentage is explored further in Chapter Six.
E Children’s interests are diverse and relational
Biotruth rhetoric also relies on the policy assumption that treating a child’s genetic progenitors as their ‘true’ parents serves the child’s best interests. On closer examination, this assumption logically relies on two assumed premises – first, that knowing whether or not an adult is their genetic progenitor generally aligns with a child’s best interests and right to know their genetic origins; and second, that therefore legal parentage should usually follow that knowledge (at least for children who are neither adopted nor donor‐conceived). The first premise has been questioned by a number of scholars including Carol Smart, Jane Fortin, Jonathan Herring and Charles Foster – but nonetheless continues to exert considerable influence within Australian family law.136
133 Boehm v Baker and Deputy Child Support Registrar [2001] FamCA 1371 [55]. 134 C & G & M [2001] FMCAfam 83 (Ryan FM) [71]. 135 Kelvin Bissett, 'I Paid $71,000 for a Fake Son (I'm Not This Kid's Dad, So Where's My Money)', Daily Telegraph (Sydney), 11 November 2008, 1. See also Turney and Wood’s analysis of media reporting of the Magill case: Lyn Turney and Paula Wood, ‘“Paternity Fraud” and the Invisible Child' [119] (2007) 5(2) Australian Journal of Emerging Technologies and Society 119. 136 Carol Smart, 'Law and the Regulation of Family Secrets' (2010) 24 International Journal of Law, Policy and the Family, 397; Fortin, above n 96; Herring and Foster, above n 69. Herring and Foster point out (at 25) that respect for autonomy (including relational autonomy) would require that people also have the
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Many judicial officers continue to interpret Article 7 of the UN Convention on the Rights of the Child (the ‘the right to know and be cared for by his or her parents’) to mean ‘biological parents’.137 This is despite international law scholarship questioning this assumption and suggesting instead that ‘nothing in the drafting history of the Convention to suggest that the term “parents” was necessarily to be defined or indeed confined to a man and woman, or to a child’s biological parents’.138 The second assumed premise means that many judges confined their best interests analysis to the question of the child’s knowledge of their genetic origins – failing to take into account the effect of a paternity discrepancy on a child’s legal relationships and therefore on their legal kinship identity and best interests. Biotruth rhetoric means therefore that despite legal parentage bundling together four distinct functions, determinations around legal parentage focus almost exclusively on the child’s interest in their origins information, often ignoring the potential repercussion for the other three functions. For example, in S v S, the first UK case to authorise blood type paternity testing for the children of married couples in 1970, Lord Hodson made a remark which has been quoted in many UK and Australian parentage cases since:
... it must surely be in the best interests of the child, in most cases, that paternity doubts should be resolved on the best evidence, and, as in adoption, that the child should be told the truth as soon as possible.139
These cases, however, are not just about ‘telling children the truth’. Because origins information is bundled together with the child’s legal kinship identity and creates default parental responsibility and economic responsibility, this information can have
right to decide not to know who is or is not one of their genetic progenitors – but that this negative right is often undermined by assumptions that knowledge is in the child’s best interests. 137 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). See, for example, Chief Justice John Pascoe, 'Louis Waller Lecture' (Speech delivered at the Victorian Assisted Reproductive Treatment Authority, Melbourne, 9 November 2016). In the same speech, Pascoe CJ also extended this interpretation to s 60B(2) of the Family Law Act 1975 (Cth). 138 John Tobin, The Convention on the Rights of the Child: The Rights and Best Interests of Children Conceived Through Assisted Reproduction, Occasional Paper (Victorian Law Reform Commission, 2004) 8. 139 S v McC and M [1970] 3 AC 107, 124 (House of Lords). This approach was followed in a number of Australian cases: G v H (1994) 181 CLR 387, [28]‐[31] (High Court of Australia). Kohari v NSW Trustee & Guardian [2016] NSWSC 1372. Re H (Paternity – Blood tests) [1996] 4 All ER 28; Re T (Paternity: Ordering Blood Tests) [2001] 2 FLR 1190; Re H & A (Children) [2002] EWCA Civ 383; TNL & CYT [2005] FamCA 77 [47]; Brianna v Brianna [2010] FamCAFC 97 (Bryant CJ, Finn and Thackray JJ) [177].
174 Chapter Four – Biotruth very significant legal impacts on the child’s entire life and identity. Here, judges often drew on the example of adoption and the shift towards disclosing the fact of a child’s adoption to the child as early as possible, without acknowledging the very different effects of disclosure in the two situations. In adoption, disclosure and identification of birth parents has zero effect on the child’s legal parentage – they are free to search for their birth parents and explore their genetic identity without risking the legal security of their relationships with adoptive parents. For misattributed paternity children, however, disclosure of genetic parentage within both current UK and Australian family law carries with it the potential to change the child’s legal parentage and kinship identity – potentially severing legal relationships with a parent and their kin, and sometimes creating new ones with people who may have until then played little role in the child’s life. In F and R, decided in 1992, Butler J concluded that knowledge of genetic parentage was in the child’s best interests, and therefore testing was in the child’s best interests:
The principle to be applied [is] that the welfare of the child is paramount. In the long and the short term a child has a distinct and important interest in knowing its paternity. Reasons include inheritance and maintenance rights but more importantly there is the human reason of identity. Modern thinking is firmly of the view that a child should know of its parentage and that everything should be done to make the knowledge available to a child. Without this knowledge the child's personal sense of identity is in doubt and never resolved, leaving confusion or doubt as a lasting heritage.140
Even within judgments emphasising origins knowledge as the deciding factor, some judges (including Butler J in F & R) acknowledged that if testing disproved the presumed father’s paternity, the consequences could involve further legal uncertainty and difficulties for the child.141 Harman J was one of the few judges to qualify parentage testing as providing information about a child’s parentage ‘in its narrow biological
140 F & R (1992) FLC 92‐300, 79,275. 141 Ibid 79,273.
175 Chapter Four – Biotruth sense’.142 Nonetheless, in Bateman & Kavan, he used this narrow biological information as definitive of legal parentage. Where judges limited their consideration of best interests to the effects for the child of the knowledge of their genetic origins, they tended to treat best interests as moot once the child is aware of paternity doubts. For example, in Ames & Ames, the presumed father had already told the child that he was not his genetic father, to the detriment of his relationship with the child.143 Dawe J reasoned that the harm had already been done, and did not discuss whether any further harm to the child would result from a likely shift in his legal parentage. Once the cat was out of the bag, it was not imagined that any additional harm could be caused by a shift in the child’s legal parentage in terms of his legal kinship identity. Likewise, once misattributed fathers were aware of the genetic paternity discrepancy, judges sometimes assumed that stripping away the legal parentage relationship would make no difference to the social parenting relationship. For example, in Tryon, Henderson FM’s discussion of the best interests of the children focused on the possibility that unless a declaration that Mr Clutterbuck was the father was made, the children might be denied ‘the benefit of a meaningful relationship with their biological father’.144 This was weighed up against the possibility of a negative impact on the children’s relationship with their social father – Mr Tryon, who was currently their legal and social father.145 Here, Henderson FM reasoned that if this relationship had already survived the mother’s affair and the knowledge that he was not likely to be the genetic father, then stripping Mr Tryon of his status as the children’s legal father was unlikely to make any difference: The girls had a relationship with the applicant prior to May 2006 in circumstances where I have found the husband and mother knew the applicant was the father of the children and that the applicant and the mother had an ongoing sexual relationship. Why a declaration of paternity now would make a difference to the nature of the girls’
142 Wang & Lo [2014] FCCA 1624 [33]. 143 Ames & Ames [2009] FamCA 825 (Dawe J) [104]‐[113]. 144 Clutterbuck & Tryon & Anor [2008] FMCAfam 784 [127]. 145 Though the children also appeared to have a social relationship with Mr. Tryon whilst their mother was seeing him, they had never lived with him, except for brief periods during holidays.
176 Chapter Four – Biotruth relationship with the husband is not apparent to me on the evidence.146 Scarlett FM made similar remarks in Levine & Levine:
One might well ask why, if [X – the child] does not know about the result of the paternity test, the Applicant should not continue to give this child the benefit of his time, support and encouragement. An adult can still have a loving, nurturing relationship with a child even if the adult is not the child’s biological parent. Australian society is full of people who have loving relationships with their step‐ children or adopted children.147
Such remarks may underestimate the degree to which law helps legitimise and give security to lived family relationships, particularly at times of family upheaval. In other paternity testing cases, judges construed the decision whether to order genetic parentage testing as a balancing exercise between the benefits of knowing ‘the truth’ and the emotional impact of that knowledge on the stability of the child’s identity.148 For example, in Brianna, the Full Court weighed up ‘truth’ against the possible harm it may do to the child’s identity, and concluded that testing was in the child’s best interests:149
This recognition by the law of the child’s long term interest in knowing the truth about his parentage, coupled with the likelihood earlier discussed of the child already being aware, or of his becoming aware in the future, of the controversy surrounding his paternity, must outweigh not only the wife’s expressed concerns regarding the threat to his loss of identity, but also the emotional and psychological harm which she reports he has suffered.150
Where genetic parentage is in dispute, the bundled nature of legal parentage means that some judges felt they had to make an invidious choice between revealing
146 Clutterbuck & Tryon & Anor [2008] FMCAfam 784 [130]. 147 Levine & Levine [2011] FMCAfam 821 [79]. 148 Brianna v Brianna [2010] FamCAFC 97 (Bryant CJ, Finn and Thackray JJ) [175]. Note – since amendments made to the FLA in 2012 specifying that parentage testing orders are not parenting orders, judges are no longer required to treat the child’s best interests as paramount in deciding whether to order parentage testing. Family Law Act 1975 (Cth) s 64B(1) ‘However, a declaration or order under Subdivision E of Division 12 is not a parenting order .’ Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) s 17. 149 Ibid. 150 Ibid [180] (Finn & Thackray, Bryant CJ agreeing).
177 Chapter Four – Biotruth the child’s genetic heritage and maintaining legal protection of the child’s lived family relationships. For example, in the UK case, H & A, the trial judge remarked:
The balancing exercise therefore that I have to conduct is to weigh the advantage of scientific truth against uncertainty, to consider the interest that the community has in establishing such certitude on the one hand and on the other hand the possible, and I believe… probably disastrous disintegrative effects of a finding that Mr B in fact is the father.151
Similarly, in another UK case, Ward LJ remarked:
Any gain to the child from preventing any disturbance to his security must be balanced against the loss to him of the certainty of knowing who he is.152
In the NSW Supreme Court decision of DOCS v A, Hodgson CJ weighed ‘truth’ against the possible shame for the child (D) in recording on their birth certificate the incest that their conception may have involved. There was evidence that D had been born as a result of an incestuous encounter between A and B, who were brother and sister aged 13 and 12 at the time. A and B’s mother refused consent for genetic testing to establish whether this was indeed the case, concerned that ‘disclosure of D's parentage would cause shame, and result in the family being isolated from and shunned by their community’.153 Nonetheless, Hodgson CJ made the declaration of parentage without the genetic testing results, remarking,
I must come to my own view as to what is truly in the best interests of D, and also of A and B; and my own view is that, in the long run, it is better for all of them that A and B face up to and accept the truth of what happened rather than attempt to ignore and suppress it. Furthermore, to establish the truth does not necessarily require disclosure and shame; and it need not interfere with the education and subsequent careers of A and B.154
Hodgson CJ’s assertion that a declaration of parentage would not necessarily result in disclosure and shame was based on an undertakings from DOCS that it would
151 Re H & A (Children) [2002] EWCA Civ 383 [16]. 152 Re H (Paternity – Blood tests) [1996] 4 All ER 28 42 (Ward LJ). 153 DOCS v A [2000] NSWSC 1179 [11]. 154 Ibid [46].
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‘supply carers of D with a birth extract certificate’ to use for school enrolment ‘would give consent to activities and authorise carers to collect the child from school’.155 Nonetheless, the order would result in amendment of D’s birth certificate – a key document certifying D’s lifelong legal kinship identity. There may well be situations in the future when D would therefore have no option but to use his full birth certificate (eg to apply for a passport),156 potentially requiring disclosure of sensitive information about his conception and his family. It was also unclear what might happen should A and B regain parental responsibility for D, for example once they reached 18. Only rarely in the balancing up of ‘truth’ v stability did judges come down on the side of stability and the best interests of the child regarding the legal kinship and default parental responsibility functions of legal parentage. Federal Magistrate Roberts’ judgment in Hadley & Pock in 2011 is exceptional in that the destabilising effect of paternity testing, at least in an emotional sense, won out over the mother’s appeals to ‘truth’. Roberts FM concluded that ‘an order for DNA testing as sought by the mother would only do more harm than good’.157 This was admittedly a hard case. The mother had been diagnosed with borderline personality disorder and had behaved in a very aggressive and erratic way, to the extent that the Department of Human Services was heavily involved and the children had been living with the father since separation. The psychologist who prepared the Family Report advised that if DNA testing proved the husband was not the girl’s genetic father, it may destabilise the girl, and inferred from the mother’s evidence that the putative genetic father was ‘a person who is not used to taking parental responsibility seriously’.158 Roberts FM remarked: When I consider all the evidence, I find that the mother has a penchant for making things up when it suits her. I therefore conclude that there must be a reasonable
155 Ibid [36]. 156 Passports Office, Passports explained > How to apply > Eligibility: citizenship and identity > Birth Certificates Australian Government, Department of Foreign Affairs and Trade. 157 Hadley & Pock [2011] FMCAfam 117 (Roberts FM) [142]. 158 Ibid [136], [141].
179 Chapter Four – Biotruth chance that the father is [W]’s father. However, even if I am wrong, simply knowing the truth for sake of knowing the truth is not a reason to subject a child to DNA testing …159 Roberts FM did not refer specifically to the ‘best interests of the child’ but nonetheless prioritised the child’s existing legal kinship identity in terms of her connection with the presumed father, who was clearly a ‘psychological parent’, over the child’s interests in ‘the truth’ of her genetic heritage. John Miller points out that the child’s interests in knowing ‘the truth’ may depend heavily on whether genetic testing is likely to establish exactly who the child’s genetic father is, or merely (as was the case in Hadley) eliminate a particular man as the child’s genetic father.160 For the child, having some doubts about whether their father is a genetic father may be better than having their relationship undermined by test results showing that he is not a genetic father (combined with law which erases any legal relationship once genetic paternity has been disproved), and still not knowing their actual genetic father. Yet even where a genetic father is established, the child may still suffer as a result of the erasure of their legal relationship with their presumed father and his kin and their legal and social identity as a member of that family.
In Australia, it has been primarily in non‐family law judgments that judges have considered the potentially disruptive effects to a child of a non‐paternity result or that child’s perspective on the issue, and primarily where the ‘child’ whose paternity was disputed was an adult.161 For example, in AW & CW, an inheritance dispute in which a mother sought orders for genetic parentage testing for her adult daughter in order to make a claim on a former lover’s estate. Dawe J was surprised that the child herself was not a party to proceedings and remarked:
The child, being of age, must be afforded full opportunity to be part of proceedings that concern such an important and intimate aspect of the child’s life. Implicit in the comment of Hodgson CJ in Eq in DOCS v A (above) that ‘the child has a right to
159 Ibid [142]. 160 John Miller, 'Considering the Best Interests of the Child in Paternity Tests' (2011) 49 Law Society Journal 82, 83. 161 AW v CW [2002] NSWSC 301; Piggott & Anor v Harrex & Anor [2000] TASSC 72. But see Hudson v Minister for Immigration & Citizenship [2010] FCAFC 119 where one of the children in question was actually a child. The other was 22.
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know its parentage’ is recognition of the reality that, where the child is of full capacity, his or her wishes on whether the parentage question should be pursued and whether he or she should undergo testing will be afforded significant weight.162
Yet when it comes to children in the family courts, this notion of a right to know as including a right not to know has generally come second to assumptions that knowledge that a particular man is (or is not) their genetic progenitor is usually in the best interests of a child. As Jonathan Herring and Charles Foster point out, the right not to know is enshrined within a number of international human rights instruments.163 In the cases, however, even where judges discussed the child’s wishes regarding testing, it was overlaid with an emphasis on testing as providing knowledge of the truth which was necessarily in the best interests of the child, even if the child did not want to know. For example, in the UK case of Re D, the eleven‐year‐old child strenuously opposed testing and any suggestion that his paternity had been misattributed. The man claiming he was the child’s genetic father had sought parenting orders which would have removed the child from the care of his paternal grandmother, and testing therefore represented a direct threat to the stability of the child’s home, relationships with his primary carer and social siblings as well as his legal kinship identity. Hedley J, nonetheless ordered testing (though with a temporary stay to allow the child time to adjust to the concept) reasoning that despite the child’s express wishes, it was in his best interests ‘to know the truth… and that in the end truth is easier to live with than doubt or fiction’.164 Because legal parentage is expected to provide genetic origins information as well as define the child’s legal kinship identity, the bundled structure of legal parentage prevents different principles guiding the distinct functions, let alone consideration of a child’s distinct interests arising for each function. It does not allow for different people to be identified as parents for the different functions. This reflects a broader conflation
162AW v CW [2002] NSWSC 301 [33]. 163 Herring and Foster, above n 69. They cite Article 5(c) of the UNESCO Universal Declaration on the Human Genome and Human Rights: United Nations Educational, Scientific and Cultural Organization (UNESCO) International Declaration on Human Genetic Data, 32 C/Res 22 (2003) 39; Article 10.2 of the European Convention on Human Rights and Biomedicine, opened for signature 4 April 1997, CETS 164 (entered into force 1 December 1999) as well as World Health Organization, Guidelines on Ethical Issues in Medical Genetics and the Provision of Genetic Services (World Health Organization, 1997) 2. 164 Re D (Paternity) [2006] EWHC (Fam) 3545 [31] (Hedley J).
181 Chapter Four – Biotruth of the best interests of the child with genetic parenting as observed by UK and Australian family law scholars such as Alison Diduck and Jenni Millbank.165 Binding together access to genetic origins information, legal kinship identity and default parental responsibility has unintended consequences which may work against the best interests of the child. For example, in Ames & Ames, Dawe J also suggested that ‘one of the responsibilities of parenthood is to assist the child in knowing the truth about his biological background’.166 The bundled nature of legal parentage means that a non‐genetic parent who exercised such a responsibility could be placing their own legal connection to the child at risk. Treating biogenetic parentage as ‘the truth’ in legal parentage determinations may therefore make it less likely that parents will disclose doubts or secrets re parentage as it can threaten their (or the other legal parent’s) legal status regarding the child. Equally, it enables parents to use their child’s genetic parentage information to serve their own ends – such as blocking the involvement of a non‐legal parent or seeking a refund on child support payments. Interpreting best interests regarding genetic testing solely in terms of ‘truth’ and knowledge can also lead judges into a loop of circular reasoning when it comes to the best interests pathway set out in s 60CC of the Family Law Act. As discussed further in Chapter Five, the best interests legislative pathway in Part VII of the FLA emphasises as one of the primary considerations for making parenting orders the ‘benefit to the child of a meaningful relationship with both of the child’s parents’.167 If judges interpret (as they have done in the disputed paternity cases) ‘parent’ to mean a biogenetic parent, then assessing whether genetic parentage testing is in the best interests of the child in terms of providing the child with a ‘meaningful relationship’ with both parents then the inquiry becomes circular. The order itself is needed to determine who (using the ‘born or begotten’ interpretation) is a ‘parent’, but to make the order, the judge needs to consider the benefit to the child of a meaningful relationship with both parents – who (using the ‘born or begotten’ interpretation) cannot be identified until genetic
165 Alison Diduck, ‘“If Only We Can Find the Appropriate Terms to Use the Issue Will Be Solved”: Law, Identity and Parenthood' (2007) 19(4) Child and Family Law Quarterly 458; Jenni Millbank, 'From Alice and Evelyn to Isabella: Exploring the Narratives and Norms of “New” Surrogacy in Australia' (2011) 21 Griffith Law Review 101. 166 Ames & Ames [2009] FamCA 825 [111] (Dawe J). 167 Family Law Act 1975 (Cth) s 60CC(3).
182 Chapter Four – Biotruth parentage testing is carried out. As Chisholm points out, ‘[a]pplying the “primary” considerations, which often mention parents, requires the court to know the identity of the parents’.168 Conflating origins information and the child’s legal kinship identity within the one legal construct therefore makes it impossible to determine each on their own merits. Finally, in policy questions like this, any best interests analysis needs to consider not just the interests of the child in question, but also impact that biotruth rhetoric may have on other children whose families do not conform to the biogenetically related norm. In particular, what effect do narrow biogenetic legal notions of parentage have for those families where one or more parents do not have a genetic link to the child due to assisted conception, adoption, Aboriginal kinship systems or cultural practices? Some of these families may experience law’s emphasis on genetic family as a devaluation of their family. Assuming that legal relationships with genetic progenitors are necessarily significant to all children’s best interests, may mean that a court overlooks or underestimates other important factors in the best interests of the particular child in question. As Bren Neale notes, ‘blanket formulations’ about best interests ‘are not flexible enough to accommodate the diversity of children’s circumstances’.169 Yet in Australia, such formulations – particularly linking children’s best interests to the ‘benefit of having a meaningful relationship with both parents’ – are built into the legislative pathway by which best interests are determined (as discussed in Chapter Three). Fear of stigma or that their child may reject them for their ‘true’ genetic parents can encourage parents to withhold information from the child about their origins. The emphasis on genetics may push parents in the direction of secrecy, to the potential detriment of their relationship with their child.170 The shift away from secrecy for donor‐ conceived children has been possible because of the security provided to non‐biogenetic
168 Chisholm, 'Parentage: Some Testing Problems ', above n 56. 169 Bren Neale, 'Dialogues With Children: Children, Divorce and Citizenship' (2002) 9 Childhood 455, 458. 170 Susan Golombok, Modern Families: Parents and Children in New Family Forms (Cambridge University Press, 2015) 24.
183 Chapter Four – Biotruth parents that disclosure cannot threaten their status as legal parents of their children.171 In the UK, Collier and Sheldon have argued that
greater emphasis on genetics has been accepted, at least in part, because of a growing belief that knowledge of and contact with a genetic father are unlikely to disrupt unduly a child’s social family and the fathering carried out within it.172
At present, the way in which legal parentage bundles together the four functions, and insists that only two people may exercise those functions (unless parental responsibility is re‐distributed) mean that legal parentage is indeed a zero‐sum game, whereby recognising a genetic parent can result in erasure of a child’s legal relationship with a social parent.173 The five assumptions conflating common law’s definition of ‘parent’ as genetic progenitor with fact, biological science, identity, justice and best interests of the child all mask the policy decisions at play. Once we critique and set aside these assumptions, it becomes clear that the emphasis on genetic progenitors within the common law definition of ‘parent’ owes much to Rationalist and economic Rationalist policy approaches. The next section explores and interrogates these.
VII RATIONALISM AT THE HEART OF BIOTRUTH
While biotruth rhetoric suggests that its recourse to biogenetic information as the ‘truth’ of legal parentage is norm‐free and merely scientific or factual, it is deployed in ways that promote a view of fatherhood as a relationship centred on Rationalist choice and economic exchange. This manifests in two key ways. First, judges treat heterosex as a proxy for intention to be a parent. Second, in cases of assisted conception, discussions of intention creep back in, even when a provider of sperm might otherwise be excluded from legal parentage due to the mode of conception and lack of
171 Johnson, Bourne and Hammarberg, above n 6. 172 Richard Collier and Sally Sheldon, Fragmenting Fatherhood: A Socio‐Legal Study (Hart, 2008) 99. 173 Robert Leckey, 'Book Review: Richard Collier, Men, Law and Gender: Essays on the “Man” of Law, and Richard Collier and Sally Sheldon, Fragmenting Fatherhood: A Socio‐Legal Study' (2011) 20 Social & Legal Studies 123, 125.
184 Chapter Four – Biotruth a marriage or de facto relationship with the mother. The combined effect of this is that legal parentage as currently constituted prioritises ‘justice’ for men but not for children.
A Heterosex as a proxy for intention
In Australian legal parentage cases, participating in the coital act which caused conception is sufficient to found legal parentage, even if a participant had no subjective intention to reproduce, or had a clear intention not to reproduce.174 For example, in Lilley & Logan, the genetic father argued that he should not be a legal parent (and therefore liable for child support) because the child was inadvertedly conceived as a result of a ‘consumer transaction’ at a time when the mother was providing sexwork, and the genetic father was a paying customer.175 The genetic father argued that:
… as the conception occurred during the course of an act of intercourse pursuant to a financial arrangement between he and the mother when the mother was working as a prostitute, there was an was an implied term to the contract that she would avoid pregnancies and/or there were provisions of the Trade Practices Act 1974 which would have applied or the State Fair Trading Acts to the effect that this was an interaction which would not result in the conception of a child. 176
Reithmuller FM reasoned:
Once conception occurs and a child is born, a child is entitled to the support of the parents. The amount of support is determined by a child support assessment under the Child Support Scheme. The antecedents of the conception do not appear to me to destroy a child’s entitlement under the Child Support Scheme and the Family Law Act 1975.177
Because conception was via heterosex, the subjective intentions of the genetic father were treated as irrelevant. Riethmuller FM noted that it was beyond the scope
174 Indeed, in a number of US cases discussed by Sally Sheldon, men were held to be legal parents and liable for child support even where they could not have consented to the sexual act which caused conception, due to being unconscious (S F v State ex rel T M ( 1996) Ala Civ App LEXIS 856 (Court of Civil Appeals of Alabama) being underage (Mercer County Department of Social Services v AIf M 155 Misc 2d 703,589 NYS 2d 288 (Fam Ct, 1992)) or having learning disabilities which meant he was legally incompetent (Matter of Department of Social Services v Victor A R (1986) 120 AD 2d 526); Sally Sheldon, 'Sperm Bandits: Birth Control Fraud and the Battle of the Sexes ' (2001) 21(3) Legal Studies 460, 461. 175 Lilley & Logan [2009] FMCAfam 868 [3]. 176 Ibid [3], [8] (Riethmuller FM). 177 Ibid [11].
185 Chapter Four – Biotruth of the present matter to determine ‘[w]hether or not the applicant has an independent cause of action against the proprietors of the brothel or escort service concerned and/or the mother, pursuant to any of the commercial arrangements that he refers to’.178 Nonetheless, he remarked that the child support amounts payable might be relevant to any such action.179
B Intention as a factor in legal parentage of assisted conception children
In contrast, where conception is assisted, legislative exceptions apply which use the language of intention, even if other factors (such as a person’s relationship with the birthing parent) are at play. In Baker & Landon, Riethmuller FM did this explicitly – building the intention of the gamete provider into the definition of ‘parent’ as someone who has ‘borne or begotten’ a child.180 Reithmuller FM does this by way of a hypothetical example:
If a man were to donate semen for research alone and the semen were mistakenly used for insemination, then in no meaningful sense could he be considered a parent who had begotten the child, other than through biological similarity. The donor in this case had relinquished any property in the genetic material and relinquished any control over its use.
The donor, in this case, does not appear to have procreated or created the child in the relevant sense as he had no contact with, nor ever knew of the mother. In this case the donor would not be aware of the actual use made of the genetic material, or if it was used at all. It is difficult to describe him as a person who had ‘begotten’ the child. A person in this position cannot have been contemplated as a person who would have shared parental responsibility for the child under the Family Law Act. This is in sharp contrast to the facts in Re Mark where the involvement of the man who provided the sperm desired, and directly facilitated, the particular conception.181
178 Ibid [13]. 179 Ibid. 180 Baker & Landon [2010] FMCAfam 280 [42], [43] (Reithmuller FM). 181 Ibid.
186 Chapter Four – Biotruth
As discussed in Chapter Three, one indicator of the tension between statutory and common law definition of ‘parent’ (and general incoherence of legal parentage as a legal concept) is the ongoing schism between ‘enlarging’ and ‘exclusive’ interpretations of s 60H of the Family Law Act, which defines legal parentage in the case of assisted conception. The ‘enlarging’ approach suggests that s 60H merely enlarges the categories of parent to include the consenting de facto partner of a birthing parent without, unless explicitly stated, excluding a person who has contributed a gamete to conception. On its face, the enlarging approach is built on an understanding of the ‘true’ parent‐child relationship as a genetic one, making, as Cronin J put it, ‘biology the determining factor unless specifically excluded by law’.182 Yet judicial accounts also draw on Rationalist approaches which treat the gamete provider’s intention to parent as helping to constitute legal parenthood. For example, in Groth & Banks, Cronin J’s conclusion that Mr Groth was ‘logically’ the parent rested not just on him being a ‘biological progenitor’ but also as ‘one of two people who set about a course of conduct with the intention of fathering a child’.183 As Kelly and Dempsey note, Cronin J provided no statutory support for his assertion in Groth & Banks that the parenthood or otherwise of a gamete donor is affected by their intentions or by whether they are anonymous or not.184 This may help explain why the ‘enlarging’ approach has sometimes prevailed in surrogacy cases
182 Groth & Banks [2013] FamCA 430 [14] (Cronin J). 183 Ibid [16]. 184 Fiona Kelly and Deborah Dempsey, 'The Family Law Implications of Early Contact Between Sperm Donors and Their Donor Offspring' (2016) 98 Family Matters 56.
187 Chapter Four – Biotruth and cases of known donors providing sperm to single women,185 but not in a case where the man alleged he provided the sperm under a misapprehension.186 For example, in BM & DA, the mother ‘helped’ the genetic father produce a semen sample (having told him she was already pregnant and needed the sample for genetic tests for the baby) before allegedly inseminating herself.187 Henderson FM considered whether the ‘enlarging’ approach to s 60H should apply to make Mr DA the child’s legal father despite conception being via assisted means and therefore coming within the statutory exceptions to the common law ‘borne or begotten’ definition of legal parentage. His Honour concluded, however, that ‘[t]he lack of consent and [the] deceit in this case sets it apart from the authorities I have referred to’.188 The judge contrasted this case with those in circumstances of surrogacy or known donation where ‘there has been an agreed and consensual arrangement between them to produce a child’. 189 In deciding the boundary between the s 60H exceptions and the common law definition of ‘parent’, scientific (or Naturalistic) accounts of parentage therefore give way to Rationalist arguments about intention – and specifically, the intentions of the man providing the sperm. Rationalist notions of intention and choice are also built into the statutory exceptions to biological parentage defining ‘parent’ in both the Family Law Act and in the various State and Territory Status of Children acts. As discussed in Chapter 3 above,
185 Surrogacy cases taking an ‘enlarging’ approach: Ellison & Karnchanit [2012] FamCA 602; Dennis & Pradchaphet [2011] FamCA 123; O’Connor & Kasemsarn [2010] FamCA 987; Collins & Tatoi [2010] FamCA 878. Many judges have subsequently followed the ‘exclusive’ approach taken by Watts J in Re Michael: Surrogacy Arrangements [2009] FamCA 691, including Mason & Mason [2013] FamCA 424 (Ryan J); Bernieres & Dhopal [2015] FamCA 736. Known donors to single women cases: Groth & Banks [2013] FamCA 430 (Cronin J). Bateman & Kavan [2014] FCCA 2521 (Harman J). Masson & Parsons [2017] FamCA 789. It is worth noting that there was some dispute in Masson & Parsons about whether the mother was indeed single (in the sense of not being in a de facto relationship) at the time of conception, as her relationship with her current partner had commenced, and they were living together by the time conception occurred. Cleary J found that at the time of conception, ‘what they had was a rapidly developing intimate relationship. The settled domestic relationship came later’ (at [74]. The finding that the donor was a legal parent was recently overturned by the Full Court of the Family Court, though the finding as to the de facto relationship (and therefore excluding the mother’s partner from being a legal parent) was upheld: Parsons and Anor & Masson [2018] FamCAFC 115. 186 BM & DA [2007] FMCAfam 770 (Henderson FM). 187 Ibid. 188 Ibid [252]. 189 Ibid.
188 Chapter Four – Biotruth the oldest example is adoption ‐ which defines someone as a ‘parent’ where they have adopted a child via statutory adoption processes. More recent amendments have allowed for parentage of ART‐conceived children to be assigned to the woman giving birth to the child and her husband or de facto partner consenting to the ART treatment, and have excluded gamete donors as parents.190 The Family Law Act provisions under s 60H use the terminology ‘intended parent’ to refer to the de facto partner or spouse of the birthing parent. The common law definition of ‘parent’ and judicial interpretations of the dividing lines between the common law definition and statutory exceptions under s 60H therefore incorporate both Naturalist and Rationalist elements in Naffine’s taxonomy, requiring both genetic connection and consent to parent (though participating in heterosex is treated as adequate to satisfy the latter).191 The significance of intention in deciding legal parentage further undermines the assumption at the core of biotruth rhetoric that legal parentage is a mere scientific fact to be discovered rather than a legal status to be determined by law.
C Intention as a factor in determining the obligations of step‐parents and misattributed fathers
Emphasis on an intention to parent also appears in judgments concerning whether step‐parent maintenance is payable in misattributed paternity cases. In DRP v AJL, Reithmuller FM works from the assumption that a ‘biological’ parent’s economic obligation towards a genetic offspring is ‘indisputable’, whereas an obligation towards a non‐genetic child must be voluntarily assumed:
If the parent‐child relationship is fostered in circumstances where the parent was mistaken or deceived as to the true nature of their relationship with the child, it appears unjust to require that person to continue to assist in supporting the child. This presents a difficulty as it matters not to the child whether the step‐parent was
190 Though a small number of judges taking an ‘enlarging’ interpretation of the word ‘parent’ in s 60H have included gamete donors as parents where Commonwealth and State / Territory law appears to conflict: Groth & Banks [2013] FamCA 430 (Cronin J). Cf Bernieres & Dhopal [2015] FamCA 736 in which Berman J declined to take the enlarging approach and remarked 'Care must be taken in respect of any approach which has as its heart a determination based purely on genetic connection without more being considered'. 191 Bateman & Kavan [2014] FCCA 2521 (Harman J).
189 Chapter Four – Biotruth
aware that they were not the biological parent. To the step‐parent it is, however, a crucial factor: it would be unjust to treat him or her as having assumed an obligation when he or she did not understand that they were `assuming' such an obligation, rather than discharging an indisputable obligation.192
Despite briefly mentioning what might matter for the child, Reithmuller FM starts and finishes with what would be ‘unjust’ regarding the non‐genetic parent. It is this Rationalistic sense of justice centred on the knowledge and intention of the misattributed father which is prioritised within the set of factors he proposes for determining when the mother should be ordered to refund past child support payments.193 Subsequent amendments to the Child Support (Assessment) Act 1989 incorporated Reithmuller FM’s factors into s 143(3B) as matters to which the court ‘must have regard’.194 In contrast, in Canada, the intention to assume parental obligations is only one factor among several helping to determine whether parental obligations should be enforced against a non‐genetic parent. A number of cases have also affirmed the importance of considering the child’s relational reality. For example, in 1999, the Canadian Supreme Court held in Chartier that:
A person cannot unilaterally withdraw from a relationship in which he or she stands in the place of a parent. The court must look to the nature of the relationship to determine if a person in fact does stand in the place of a parent to a child.195
192 DRP v AJL [2004] FMCAfam 440 [48] (Riethmuller FM). 193 Ibid [66]. 194 The s 143(3A) factors are: (a) whether the payee or the payer knew or suspected, or should reasonably have known or suspected, that the payer was not a parent of the child; (b) whether the payee or the payer engaged in any conduct (by act or omission) that directly or indirectly resulted in the application for administrative assessment of child support for the child being accepted by the Registrar; (c) whether there was any delay by the payer in applying under section 107 for a declaration once he or she knew, or should reasonably have known, that he or she was not a parent of the child; (d) whether there is any other child support that is, or may become, payable to the payee for the child by the person who is a parent of the child; (e) the relationship between the payer and the child; (f) the financial circumstances of the payee and the payer. Child Support (Assessment) Act 1989 (Cth) s 143(3B), (amended by No 146 of 2006). 195 Chartier v Chartier [1999] 1 SCR 242 (Supreme Court of Canada. L’Heureux‐Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ).
190 Chapter Four – Biotruth
Subsequent cases have clarified that this approach is relevant even where the parent had thought he was a genetic parent of the children.196 This focus on the interests of the child and the quality of the parent‐child relationship enables what Jordan might call a more horizontal distribution of authoritative knowledge, rather than a hierarchical one in which Naturalist scientific knowledge of genetic relatedness and the Rationalist intentions of the man involved trump the child’s knowledge of their own family relationships and kinship identity.197
D Heterosexual reproduction as a sexual contract
One of the key ways in which Naturalist and Rationalist explanations of parentage are stitched together within biotruth rhetoric is by way of social‐Darwinist accounts of marriage as a cultural phenomenon designed to meet men’s evolutionary objective in ensuring nurture and protection of their genetically‐related offspring. For example, in Russell v Russell, in 1976, the High Court considered the constitutional validity of a number of sections within the Family Law Act, such as its definition of ‘child of the family’ to include (like the Matrimonial Causes Act before it) a child of either party to the marriage as a ‘child of the marriage’.198 Gibbs J suggested that the Family Law Act’s definition of ‘matrimonial causes’ may have been unconstitutional in regard to ‘proceedings with respect to the custody of a child who is in truth not the child of a marriage’.199 Jacobs J responded to the constitutional question by suggesting an evolutionary basis for marriage as a way to involve men in the raising of their biological offspring:
The primary reason for its [marriage’s] evolution as a social institution, at least in Western society, is in order that children begotten of the husband and born of the wife will be recognized by society as the family of that husband and wife. Marriage would appear to be a product of the recognition actual or instinctive of
196 Ballmick v Ballmick [2005] ONCJ 101 [20]. This reasoning has been upheld in subsequent cases – see TDG v LMG (2009) 207 NBBR; Boivin v Smith (2013) ONCJ 426; Day v Weir (2014) ONSC 5975; EZ v PZ [2017] BCSC 375; Cornelio v Cornelio (2008) 94 O.R. (3d) 213. Cf TW v SL [2017] SKQB 45; RNH v GC‐B [2004] SKQB 515. 197 Jordan, above n 25. 198 Russell v Russell (1976) 134 CLR 495 (Barwick CJ, Gibbs, Stephen, Mason and Jacobs JJ). 199 Ibid [19] (Jacobs J).
191 Chapter Four – Biotruth
participation by the male in the process of conception, its purpose being in order that the male may and will participate in the nurture and protection of the offspring.200
Similarly, and more recently, UK family law scholar, John Eekelaar, has speculated:
It may be a bio‐evolutionary imperative that men should seek to keep their wealth and power within their gene‐pool by ensuring that the children borne by the women whose reproductive and nurturing capacities they have conscripted are their own genetic offspring. But humans have not always followed that genetic route.201
These social‐Darwinist stories about marriage and parentage rely on the idea of reproduction as a sexual contract. Like the social contract, the heterosexual contract is a Rationalist construction, which depends on the notion of parents (particularly fathers) as rational, self‐maximising individuals. ‘Self‐maximising’ in the context of reproduction, is taken to mean ensuring the production and survival of genetically‐related progeny. For example, population geneticists have argued that, ‘[w]hen cuckoldry is frequent we can expect fathers to withhold investment in offspring that may not be theirs’.202 When reproduction is thought of as a contract – production of a genetically‐ related offspring in return for economic support – it makes sense that a man who discovers that a child is not carrying his genes would reject the ‘product’ as not matching the description and claim a refund for resources invested to date. Where the State has taken on the role of safety net for the inevitable dependency of children and the ‘derivative’ dependency of those who care for them, it makes sense within the heterosexual contract paradigm for the State to find the men who ‘bargained for’ these children and to compel them to provide economic support for their genetic progeny.203 Hence the Child Support system is based on this contract model of reproduction –
200 Ibid [10] (Jacobs J). 201 Eekelaar, above n 89. 202 JM Greeff and JC Erasmus, 'Three Hundred Years of Low Non‐Paternity in a Human Population' (2015) 115 Heredity 396. See also Rob Brooks, 'What Are the Chances That Your Dad Isn’t Your Father?' (2014) The Conversation (online)
192 Chapter Four – Biotruth requiring parents to recoup the state or the other parent for the cost of continuing their genes. Likewise, the Child Support Agency has persistently litigated to deflect liability to repay misattributed fathers for child support payments made for children whose paternity was misattributed from the Agency to mothers. This approach was upheld by the Full Court of the Family Court in Child Support Registrar & Z & T on a very technical reading of the legislation.204 The discussion of the reasoning for making mothers solely liable to repay misattributed fathers was brief, and turned on treating the Child Support Registrar simply as the ‘agent’ of the mother:
By analogy with the law of agency it is presumed that payment to the agent/appellant pursuant to a contract would be regarded as payment to the disclosed principal/mother. Accordingly actions for recovery in the event of total failure of consideration or rescission for fundamental breach after payment lie against the disclosed principal/mother, not the agent/appellant. 205
In this analysis, the state fades into the background as a mere agent or conduit, and production of a child genetically unrelated to the man providing economic support is construed as a fundamental breach, or failure of consideration on the part of the mother. While the Full Court used contract as an analogy in Child Support Registrar & Z & T, it is clear that child support is being interpreted as a transaction – payment in return for genetic progeny – and therefore requiring a refund where the child is not the genetic progeny of the payer. Aside from dehumanising the child, this contractual analogy obscures the social and statutory context in which child support is interwoven with our social security system. If women fail to disclose the (predicted genetic) father of their child or do not apply for a child support order, they may be penalised via the social security system with lower family assistance payments.206 Women’s obligations to
204 Child Support Registrar & Z & T [2000] FamCA 182 (Lindenmayer, Finn & Coleman JJ, 21 March 2002). 205 Ibid [40]. 206 Women may be exempted from this requirement if a Centrelink social worker can be convinced that there are special circumstances, such as a reasonable fear of violence from the payer. Department of Families, Housing, Community Services and Indigenous Affairs, Family Assistance Guide, Version 1.133, 6 September 2010, 3.1.5.70 [2010]). The mother in Boehm & Baker gave evidence that she informed Centrelink staff that her husband was ‘not the biological father’ when she applied for child support, but was told that ‘all that mattered was that his name was on the birth certificate’: Boehm v Baker and Deputy Child Support Registrar [2001] FamCA 1371 [37].
193 Chapter Four – Biotruth accurately disclose the identity of the men who got them pregnant are enforced, therefore, not just via the imagined sexual contract which arises along with any procreative sex, but also via the social contract with the state – so that any failure to meet these obligations may also reduce their (and their child’s) access to the social safety net. These Rationalist accounts of parentage carry within them gendered notions of the rational subject. Here the sexual contract story has much in common with the social contract creation story which Naffine notes, takes ‘this autonomous being as its central character: the person who is already an independent rational agent at the moment of deciding whether to enter civil society’.207 Legal feminists have queried this Rationalist story of autonomy because it is ‘misleading about the nature of human selfhood’.208 Nedelsky, for example, argues for a relational account of the self, because our embodied existence means that we all live through (or exist completely within) periods in which we are ‘utterly dependent creatures’.209 Our degree of dependency is also highly gendered given the nature of human reproduction and infancy and gendered patterns of unpaid care work. Likewise, the embodied nature of conception, pregnancy and birth means that people’s choices at each step along the way may be contingent and dependent on relationships with others. Social science research with women who do not disclose doubts regarding their child’s paternity indicates that far from functioning as autonomous and self‐maximising actors, many of these women ‘found out too late that they were in a position over which they ultimately had little control’.210 These women have broken the unspoken contract to provide accurate information about the genetic fathers of their children and to provide men with genetically‐related offspring in return for economic support. Misattributing paternity therefore offends both Naturalist and Rationalist elements of biotruth rhetoric. Forcing these women to refund child support payments represents the enforcement of the heterosexual contract implied by biotruth rhetoric. Children, and their legal kinship
207 Naffine, Law's Meaning of Life: Philosophy, Religion, Darwin and the Legal Person, above n 60, 155. 208 Jennifer Nedelsky, 'Law, Boundaries and the Bounded Self' (1990) 30 Representations 162, 170‐171. 209 Naffine, Law's Meaning of Life: Philosophy, Religion, Darwin and the Legal Person, above n 60, 157. 210 Lyn Turney, 'Paternity Secrets: Why Women Don't Tell' [227] (2005) 11(2) Journal of Family Studies 227, 242.
194 Chapter Four – Biotruth relationships and identities, are collateral damage in this accounting process. A focus on conception positions men as legal subjects, whose knowledge or intention (whether carnal or conscious) regarding the mother’s sexual and reproductive body determines their relationship with her child. The child, therefore, is reduced to an object of knowledge ‐ a mere product of the encounter between the knowing father and the mother’s concealing body. Heterosex therefore functions not just as the biologically constitutive moment for the child’s legal parentage, but also as a proxy for consent and intention to parent. This double significance has meant that where heterosex is missing, judges determining legal parentage have sometimes focussed on the intentions of the man providing the sperm.211 This creates a tension, then, between proxy (heterosex) and actual intention in deciding legal parentage.
VIII CONCLUSION
Despite the complex structure of legal parentage and the multiple functions it is expected to serve (as described in Chapter 3), judges continue to treat it as a simple factual question of ‘truth’ rather than law. This chapter has argued that this simplistic approach relies on a set of assumptions about legal parentage as a natural and essentialist relationship arising from heterosexual conception – a rhetoric referred to here as ‘biotruth’. Biotruth is not just law using stable scientific facts. Instead, it conflates the genesis of the legal parent‐child relationship with the genetic genesis of the child – amounting to an unstated norm regarding family structure. Because it claims to represent ‘the truth’, so naturalised is this legal norm that it is almost invisible – obscuring law’s own power in defining parent‐child relationships by conflating legal and biogenetic parentage. Biotruth rhetoric rests on five false assumptions – that legal parentage is a fact rather than a legal status, that ‘biological’ parent can only mean genetic progenitor, that ‘identity’ can only mean genetic identity, and that conflating legal and genetic parentage serves both justice and the best interests of the child. The
211 See more detailed discussion of the enlarging v restrictive interpretations of s 60H in Chapter Three above.
195 Chapter Four – Biotruth problem, therefore, is not just that biotruth draws on genetic science rather than epigenetics, neuropsychology or the psychology of attachment. The problem is that law’s recourse to a scientific ‘truth’ (however selected) obscures the policy decisions at play and the prioritisation of one facet of being a parent over others. Robert Leckey has suggested that this impetus to name genetic parents as legal parents, even when they have no role in raising the child, manifests ‘a desire for law to order family relationships and to define personal identity’.212 This observation goes directly to an uncertainty around the purpose of legal parentage – is its purpose reflective (ie providing legal protection to parent‐child relationships – however these are defined) or normative (ie seeking to align social parenting with a particular norm)? And if legal parentage’s purpose is normative, should the norm be defined by a particular family structure (ie the ‘eternal biological family’) or by healthy relationships and family practices?213 Given the increasing diversity and complexity which characterise family relationships, this uncertainty around the purpose of legal parentage brings with it policy questions about the significance of stability in legal parentage and the types of parent‐child relationships which should be recognised as legal parentage. The current approach, it is argued here, in locking together (presumed) origins information and legal kinship identity (along with default parental responsibility and economic responsibility) works to normalise the genetically related nuclear family structure rather than reflecting the relational reality children experience and using quality of parent‐child relationships to help determine a child’s legal kinship identity. This is distinctly at odds with the social science indicating that it is the quality of family relationships rather than family structure which is the best predictor of child wellbeing.214 A further difficulty with truth claims like those embedded within biotruth rhetoric is that they require any other contenders for the category of ‘parent’ to be dismissed or treated as false – whether that is a relinquishing parent in the case of adoption, or a non‐genetic father in a misattributed paternity case. The binding
212 Robert Leckey, 'Identity, Law, and the Right to a Dream?' (2015) 38(2) Dalhousie Law Journal 525, 537. 213 Sevenhuijsen, above n 8. 214 Golombok, above n 163.
196 Chapter Four – Biotruth together of providing official origins information with other functions within the relationship status of legal parentage means that there is no room for nuance or for acknowledgement that children may have several types of parent, each with a different kind of significance.215 Biotruth represents what Jordan might call a hierarchical distribution of authoritative knowledge, because non‐genetic ways of knowing who is a parent to whom (such as children’s knowledge of their own family relationships) are often dismissed in favour of ‘scientific’ ways of knowing via genetic testing technologies, and sometimes in favour of men’s knowledge and intention to parent.216 It is at odds with the complex and diverse reality of lived family life and therefore causes harm because judges are unable to be flexible or responsive to children’s needs and perspectives when it comes to their own legal parentage. Rhetoric about biology also obscures an underlying Rationalist logic which privileges the choices and intentions of men over the child’s relational reality. Biotruth therefore carries with it a gender‐biased story of reproduction as a Rationalist transaction in which children are mere products. If, as this thesis argues, the bundled nature of current legal parentage and the Biotruth rhetoric binding it together are causing problems for misattributed paternity children (and potentially for other children in families which do not conform to the hetero‐nuclear family), can unbundling the functions within legal parentage help? First, it must be recognised that Australian family law already allows for some unbundling of parental responsibility (including time with and decision‐making for children) because it enables judges to make parenting orders in favour of some non‐legal parents. Where legal parentage as currently conceived is constrained by rigid and simplistic Biotruth rhetoric, judicial discretion to make parenting orders is broad and flexible, and allows for more nuanced responses to the circumstances of the particular child or children. Chapter Five explores this mechanism and how it has been used (with some success) for a handful of misattributed fathers keen to continue their role in their child’s life. It also considers the limitations of this mechanism, in terms of both when it can be used and
215 Emily Jackson refers to this as the ‘exclusive’ aspect of legal parentage: Emily Jackson, 'What is a Parent?' in Alison Diduck and Katherine O'Donovan (eds), Feminist Perspectives on Family Law (Routledge, 2006) 59‐74, 59. 216 Jordan, above n 25.
197 Chapter Four – Biotruth
its capacity to unbundle legal parentage in ways that put children as legal subjects in the centre.
198 Chapter Five – Parenting Orders
CHAPTER FIVE – Legal Parentage v Parenting Orders
This chapter pivots the focus of the thesis, from analysing the problems with the current bundled model of legal parentage to considering how Australian family law can address these problems. This chapter examines the potential for an existing mechanism – parenting orders – to address children’s distinct needs regarding origins information, legal kinship identity, care and decision‐making and economic support where legal parentage cannot. It assesses whether parenting orders provide an effective work‐ around for the problems which bundled legal parentage creates for misattributed paternity children. Chapter Six then considers potential law reforms which might further unbundle the functions within legal parentage and create space for children’s voices to be heard and best interests to be considered. In many jurisdictions, legal parentage is a pre‐condition for someone to apply to the court for orders for a child to live with or spend time with them (‘parenting orders’).1 Under Australia’s Family Law Act 1975 (FLA), however, the ability to seek parenting orders has been unbundled from legal parentage by s 65C, which enables any person ‘concerned with the care, welfare and development of the child’ to apply for parenting orders. As discussed in Chapter 1, legal parentage within Australian family law locks together access to (presumed) origins information, economic obligations, legal kinship identity and default parental responsibility, but it is possible for non‐legal parents to secure parental responsibility and/or time with the child via parenting orders. Non‐legal parents who were in established parenting relationships with the child have been successful in obtaining parenting orders in a variety of contexts including misattributed paternity,2 step‐parenting,3 extended family primary carers,4 and customary adoption.5
1 This is the case for many US jurisdictions. See, eg, Brooke SB v Elizabeth ACC (2016) 28 NY3D 1. 2 See, eg, Mulvany & Lane [2009] FamCAFC 76; Re C & D [1998] FamCA 98 (1 July 1998); C & G & M [2001] FMCAfam 83 (Ryan FM, 25 July 2001). 3 See, eg, Vaughan & Vaughan & Scott [2010] FMCAfam 863; Styles & Palmer [2014] FamCA 383; Dautel & Dautel [2017] FCCA 3254 (21 December 2017). 4 See, eg, Yamada & Cain [2013] FamCAFC 64 (Thackray, Murphy & Macmillan JJ); Donnell v Dovey [2010] FamCAFC 15 (10 February 2010); Kilduff & Gros [2017] FamCA 808 (13 September 2017). 5 See, for example, Lara & Marley [2003] FamCA 1393.
199 Chapter Five – Parenting Orders
This chapter asks to what extent parenting orders in favour of non‐legal parents are able to remedy the difficulties identified above.6 This chapter therefore analyses how parenting orders and legal parentage interact. Drawing again on the disputed paternity cases, and making some comparisons with other non‐legal parents seeking parenting orders, it asks how legal parentage shapes the discretionary and jurisdictional space in which judges determine parenting orders in misattributed or disputed paternity cases. Parenting orders offer significant potential for moderating the rigidity of legal parentage and its omnibus structure – but can they function as a ‘safety net’ to create an alternative legal connection between a child and a non‐legal parent where legal parentage falls short? The chapter answers this question in three stages. First, Part I compares the functions of legal parentage and parenting orders, asking what legal parentage achieves that cannot be achieved with parenting orders. To make the comparison, it examines the relevant legislation, commentary and social science touching on the differing legal, social and emotional functions which parentage and parenting orders serve within families. Part II then examines the distinct legislative pathways which the FLA creates for legal and non‐legal parents seeking parenting orders. Finally, Part III analyses seven cases where misattributed fathers sought parenting orders, and the interactions these cases reveal between legal parentage and parenting orders. In particular, it traces the way in which the structure of legal parentage nonetheless limits the flexibility of parenting orders and in which biotruth rhetoric seeps from legal parentage into parenting order judgments. These are complex cases, in which substance abuse, family violence, cultural and linguistic diversity, and
6 At least in the case of known sperm donors who donated on the understanding that they would be a co‐ parent to the child, the Family Law Council has indicated its view that parenting orders are sufficient. Family Law Council, Report on Parentage and the Family Law Act (2013) 60. The Council was responding to a submission from the Law Institute of Victoria claiming that there was ‘no legal process to protect the intent of men who have entered into parenting arrangements’. Law Institute of Victoria, Submission to Family Law Council, Report on Parentage and the FLA (2013) 11.
200 Chapter Five – Parenting Orders blended family dynamics make frequent appearances, and in which judicial officers need to balance many potential risks and benefits to the child. Yet despite the complexity, there are commonalities in terms of the ways parenting orders can and cannot moderate the effects of a retrospective change in legal parentage due to new evidence regarding the child’s origins. The bundling together of origins information and legal kinship identity which hampers the flexibility of legal parentage also limits the potential of parenting orders because parenting orders cannot change the way origins information is recorded or the child’s legal kinship identity. This is particularly so since the 2006 amendments to the FLA which inserted ‘the benefit to the child of a meaningful relationship with both parents’ as a primary consideration in assessing the best interests of the child for any parenting order. Biotruth rhetoric also endures in parenting order determinations – often via language about how family structures which do not conform to the heteronuclear norm (eg including a genetic father and a social father) are ‘confusing’ for children. Parenting orders are also limited by concepts of parental autonomy or authority which treat children as coming within the jurisdiction of their legal parents – so that the court may make parenting orders against a parent’s wishes only ‘when there is some risk to a child's welfare’.7 Parental autonomy, therefore, may sometimes trump a child’s interest in continuing a parenting relationship with a misattributed father.
IX DIFFERENT EFFECTS: WHAT DOES LEGAL PARENTAGE PROVIDE THAT PARENTING ORDERS CANNOT?
To understand why parenting orders cannot on their own resolve the problems this research has identified with legal parentage, it is important to examine the legal effects of legal parentage. This part examines those effects and the ways in which parenting orders can work to reallocate parental responsibility and time with and decision‐making for a child away from the legal parent(s). It starts by considering the
7 Re Phillip B 92 Cal App 3d 796, and AMS v AIF [1999] HCA 26 [86], cited in VR & RR [2002] FamCA 320 [31] and [32] respectively.
201 Chapter Five – Parenting Orders powers a parental responsibility order can provide to a non‐legal parent and then what legal parentage can give a parent‐child relationship in terms of status and recognition.
A Different powers
Legislation and government department guidelines in most Australian states and territories generally enable non‐legal parents who hold a parental responsibility order to enrol a child in school or childcare,8 make medical decisions for the child9 and consent to a passport application for a child,10 though this may be more or less clear depending on jurisdiction. For example, the NSW Health Policy Directive only refers to parents holding parental responsibility orders, and the Victorian Department’s to ‘parents or guardians’ so the ability of a non‐legal parent with a parental responsibility order to consent to a child’s treatment may depend on how strictly the health care provider interprets the relevant Directive.11
There is however a functional gap between parental responsibility provided by parenting orders, and the rights and duties attendant on legal parentage.12 As the Family Law Council observed in 2013, ‘Parental responsibility orders do not provide the same protection and certainty as a finding of legal parentage. Parenting orders cease when a
8 Since 2010, with the implementation of the Education and Care Services National Law (‘ECSNL’), schools and child care services operate using a definition of ‘parent’ which includes a guardian of the child as well as ‘a person who has parental responsibility for the child under a decision or order of a court’. The National Law has been adopted by the States and Territories, eg Education and Care Services National Law Act 2010 (Vic), Schedule s 5; Children (Education and Care Services) National Law Application Act 2010 (NSW). 9 See, eg, Health Department guidelines in Queensland specify that consent may be given by a ‘parent or other person with parental responsibility’: Queensland Health, Guide to Informed Decision‐making in Healthcare (Queensland Government, 2012), 36. 10 Unless special circumstances apply or a court has made specific orders otherwise, a child needs the consent of ‘each person who has parental responsibility for the child’ before Australian travel documents may be issued: Australian Passports Act 2005 (Cth) s 11. 11 NSW Health, Policy Directive: Consent to Medical Treatment ‐ Patient Information Report No PD 2005_406 (2005) [26]. This is the current policy and is due to be reviewed in June 2016; Victorian Department of Health, Informed Consent ‐ Standard 1: Governance for Safety and Quality in Health Service Organisations (2014) 9. 12 See discussion by Watts J in Dudley & Anor & Chedi [2011] FamCA 502l [22], drawing on NSW Legislative Council Standing Committee on Law and Justice, Legislation on Altruistic Surrogacy in NSW (2009) [6.96].
202 Chapter Five – Parenting Orders child turns 18 (s 61C) and do not grant parental status’.13 The Human Rights and Equal Opportunity Commission noted in 2008 that parenting orders ‘do not confer any automatic parental status for the purposes of federal laws other than the FLA’ and ‘can be varied or challenged at any time’.14
While non‐legal parents who hold a parental responsibility order regarding a child may (usually with some additional bureaucratic wrangling) make decisions for a child regarding education, medical care and travel, the legal parents retain important powers and responsibilities regarding the child’s legal identity, relationship and citizenship status and economic obligations. For example, any application to change a child’s name must have the consent of both legal parents, unless they are ‘dead, cannot be found, or for some other reason cannot exercise their parental responsibilities to a child’.15
In terms of estate law, parental responsibility orders are not sufficient to bring someone into the category of ‘child’ (or consequent kinship relationships such as ‘grandchild’, ‘niece’, ‘nephew’ etc) in order to inherit. Eligibility for family provision claims (ie to challenge a will) however turns on age or likely level of dependence – treating such dependants equally whether they are a child or stepchild of the deceased, or a person who ‘for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated by the deceased as a natural child of the deceased’.16 Similarly, the Victorian Administration and Probate Act 1958 defines the ‘parent’ of a child to include ‘a person who has day to day care and control of the child and with whom the child is ordinarily resident’.17 A child hoping to inherit from the estate of a misattributed father would therefore be excluded from the category
13 Family Law Council, Report on Parentage and the FLA (2013) 68. 14 Human Rights and Equal Opportunity Commission, Same Sex. Same Entitlements: National Inquiry into Discrimination against People in Same‐Sex Relationships: Financial and Work‐Related Entitlements and Benefits (2008) 104. 15 Births, Deaths and Marriages Registration Act 1996 (Vic) s 26. 16 Administration and Probate Act 1958 (Vic) s 90 as amended by Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic) No. 80 s 3(2). 17 Administration and Probate Act 1958 (Vic) s 3(1).
203 Chapter Five – Parenting Orders of ‘child’,18 but could have some chance via a family provision claim or a distribution on intestacy if they met the dependency requirements. The lack of clarity here holds the potential to drive significant family conflict – particularly as the intestacy provisions in the Administration and Probate Act 1958 hold that a surviving partner will receive the entire estate if there are no children of the deceased.19
While a child’s dependence on a non‐legal parent may create obligations to provide support after death in cases of family provision or intestacy, a living person’s obligation to financially support a child is limited to ‘parents’ under the Child Support (Assessment) Act,20 and occasionally stepparents under s 66M of the FLA.21
B Different status and recognition
On top of these specific rights and powers, legal parentage offers a level of formal recognition of a parent‐child relationship which has impacts in and of itself. The status of parent is more than just the sum of the various powers and duties which flow from being listed on a child’s birth certificate as a legal parent. As discussed above, many of these powers will also flow from a parental responsibility order, however legal parentage is a form of recognition in and of itself which parental responsibility orders cannot match. In Liz Short’s study of lesbian mothers, families who experienced the transition from no recognition of co‐mothers to State or Territory legal recognition on the birth certificate described the effects of the laws on their family using terms such as
18 See, eg, the Tasmanian Supreme Court’s decision to order genetic testing of a putative beneficiary in Piggott and Harrex [2000] TASSC 72. 19 Administration and Probate Act 1958 (Vic) s 51(1). 20 The one exception appears to be where the Family Court has issued consent orders recognising a Kupai Omasker customary adoption, in which case the Child Support Guide specifies that ‘a duty to maintain a child will be established.’ Child Support Agency, Child Support Guide, Version 4.15 (2016) 2.9.15 21 See, eg, Tobin v Tobin [1999] FamCA 446 (13 May 1999). It is possible to claim stepparent maintenance against a misattributed father under s 66M, though this is a secondary liability subject to that of the parents: V & V [2002] FMCAfam 408 (Bryant CFM, 19 November 2002). But see Henning & Henning [2012] FMCAfam 119, where a step parent maintenance order was refused, primarily because the mother had not discharged the onus of providing adequate information as to the income, earning capacity, property and financial resources of both of the parties or the child’s genetic father at [32] and [36].
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‘huge’, ‘massive’, ‘pivotal’, ‘central’, ‘fundamental’, ‘fantastic’, ‘indescribable’, ‘overwhelming’, ‘intangibly helpful’, and ‘incredibly important’.22 In Beck & Whitby, Watts J made consent orders granting parental responsibility orders to the receiving parents in a Kupai Omasker arrangement but expressed frustration that
Notwithstanding the orders I make today, under the FLA, the Respondents remain the child’s parents and the Applicants do not become the child’s parents. The difficulty with the birth certificate is an example of a practical problem that flows from that lack of formal recognition of the Applicants as the parents of the child. The problem has been discussed for more than 25 years in various significant Government reports. The Federal Government has power to amend the FLA to enable a court to declare persons in the positions of the Applicants in this case as parents. Alternatively the States have power to amend State legislation to allow full recognition of traditional Torres Strait Islander child rearing practices. Maybe one day the law will be changed.23
While parenting orders provide some level of security for children and families affected by Kupai Omasker, they still fall short because they cannot change a child’s birth certificate, the eligibility for inheritance which would accompany those changes and the legal status of being a parent.24
X DIFFERENT PATHWAYS: APPLYING FOR PARENTING ORDERS AS A NON‐LEGAL PARENT
At first glance, in examining the family law system as a whole, it might appear that parenting orders and legal parentage fulfil distinct but (ideally) complementary roles – balancing stability and flexibility, connection with origins and current parenting relationships, and belonging and care. Legal parentage, as discussed in Chapter Three, is imagined as an underlying status, the ‘truth’ of which can be discovered (but not
22 Liz Short, 'It Makes the World of Difference: Benefits for Children of Lesbian Parents of Having Their Parents Legally Recognised As Their Parents' (2007) 3 Gay & Lesbian Issues and Psychology Review 5, 11. 23 Beck & Whitby [2012] FamCA 129 [74]. 24 Deanne Drummond, 'Kupai Omasker – Incorporating Traditional Adoption Practices into Australia’s Family Law System' (Paper presented at the World Congress on Family Law and Children’s Rights, Sydney, 17 March 2013) 11.
205 Chapter Five – Parenting Orders changed) by evidence about the moment of the child’s conception, and can only shift via the formal processes of adoption or a transfer of parentage from the birth mother following an approved surrogacy arrangement. Parentage, therefore, works by way of ‘declaratory theory’, which denies law’s role in constituting who is and is not a ‘parent’ (at least for biogenetic parentage – see discussion in Chapter Three on the ‘deemed’ parentage of ART‐conceived or adopted children). Legal parentage is inflexible both in what information it looks to in order to determine parentage (such as birth records, adoption or Assisted Reproductive Treatment (ART) clinic documents) and in terms of who may be a parent – a maximum of two, determined via the common law ‘born or begotten’ definiton or statutory exceptions to it for adopted, ART‐conceived or surrogate‐born children. Parenting orders, on the other hand, are far more flexible – both in terms of what kinds of orders can be made and who can obtain parenting orders. Standing to apply for parenting orders is not limited to parents, but is extended to the child, the child’s grandparent, and ‘any other person concerned with the care, welfare or development of the child’.25 This recognises the importance of caregiving relationships – irrespective of legal parentage – to the child’s best interests. Rather than being determined by strict rules, parenting orders are a matter for judicial discretion, with the best interests of the child (as defined by statute) prioritised as the paramount consideration for the court. The rigidity of parentage and the flexibility of parenting orders mean that the interaction between the two is asymmetrical: being a legal parent can influence whether a person can obtain parenting orders, but holding parenting orders cannot influence whether that person is a legal parent. While the best interests of the child must be paramount in determining parenting orders, family courts are constrained by different legislative pathways for parents and non‐parents. The following sections examine the legislative hurdles non‐ legal parents face when they seek parenting orders, with particular attention to misattributed paternity fathers. First, non‐legal parents must establish standing as a ‘person concerned with the care, welfare and development of the child’. Second, they start from noting in that they have no presumed equal shared parental responsibility
25 FLA 1975 (Cth) s 65C.
206 Chapter Five – Parenting Orders with the child’s mother. Finally, they face a much more complex path through the best interests decision‐making framework because one of the two primary best interests factors is limited to legal parents.
A Establishing Standing to apply for parenting orders as a non‐parent
Section 65C creates four categories of people who may apply for a parenting order. Three of these are simply based on status: the child him‐ or herself, a parent and a grandparent. The final category is more complex, empowering ‘any other person concerned with the care, welfare or development of the child’ to apply. This section initially read, ‘any other person who has an interest in the welfare of the child’ but was amended in 1995 by the Family Law Reform Act 1995 (Cth). 26 This change has been interpreted by the courts as creating a more substantial threshold test which functions to ‘exclude from the class of persons who may make an application for a parenting order persons who might be described as mere busybodies, or persons who may have a sincere interest in the welfare of a child but who have had no prior involvement with or connection to the child’.27 This shift, from ‘interested in’ to ‘concerned with’ carries echoes of Smart’s distinction between ‘caring about’ and ‘caring for’, meaning the ‘physical work of caring as opposed to the intellectual concern’.28 Non‐legal parents must therefore prove a pre‐existing and continuing involvement with the child which is not required for parents and grandparents.
B Starting from nothing – claiming parenting orders without default parental responsibility
If a non‐legal parent clears the s 65C hurdle, they do not have the benefit of presumed parental responsibility. Status as a parent carries with it automatic parental responsibility (unless or until a court orders otherwise) and – under the legislative pathways introduced in 2006 – triggers a presumption that equal shared parental
26 s 69 echoes these categories to define who may apply for ‘any other kind of proceedings under this Act in relation to a child’. 27 R & M [2002] FMCAfam 279 (30 August 2002) [10] (Driver FM). 28 Carol Smart, 'The Legal and Moral Ordering of Child Custody' (1991) 18 Journal of Law & Society 485, 487.
207 Chapter Five – Parenting Orders responsibility is in the best interests of the child.29 If this presumption is not rebutted, and the court makes an order for equal shared parental responsibility, then the court must consider whether an order requiring the child to spend equal time with each parent would serve the child’s best interests and be ‘reasonably practicable’.30 If an equal time order is not made, the court must then consider ordering the child to spend ‘substantial and significant’ time with each parent – defined to include weekday, weekend and holiday time as well as ‘occasions and events that are of particular significance’ both to the child and to the parent.31 As the cases explored below illustrate, it is unusual for a court to order that a non‐legal parent hold parental responsibility.
C Navigating the best interests legislative pathway as a non‐parent
Finally and most importantly, non‐legal parents seeking parenting orders must convince the court that it is in the child’s best interests that they continue their involvement with the child. The number of divergent approaches at play here indicates the lack of clarity in the legislation about whether the claims of parents should be given more weight than non‐legal parents. Where the dispute is between a legal parent and a non‐legal parent, courts have oscillated towards and away from a preference for the ‘natural parent’ as the legislation has changed. Until 1993, Australian family courts generally answered the question of whether it was in a child’s best interests to make parenting orders in favour of a non‐ parent in line with the ‘natural parent preference’ approach, based on the ‘prima facie right’ of each child ‘to an upbringing by its surviving natural parent’.32 For example, in Drew in 1993, Treyvaud J relied on the principles set out in s 43 of the FLA defining the family as ‘the natural and fundamental group unit of society’ to find that ‘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’.33 In
29 FLA 1975 (Cth) s 61C(1) and s 61DA respectively. 30 FLA 1975 (Cth) s 65DAA(1). 31 FLA 1975 (Cth) s 65DAA(2) & (3). 32 In the Marriage of Braithwaite (Unreported, Family Court of Australia, Kay J, 19 December 1991). 33 In the Marriage of Drew (1993) 16 Fam LR 536
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Jones & Darragh, Renaud J expressed the rationale for this preference in terms of genetic identity: ‘People want to know who they genetically are, people want to belong and, at least in our society, the first ties are family ones’.34 In Rice & Miller, decided in 1993, the Full Court re‐considered the natural parent preference. There the child’s father was appealing orders that the four year old child live with her maternal grandmother (her primary carer for the last three years), but have regular time with him, arguing that the trial judge erred in not recognising a preference for a natural parent over a grandmother. Ellis, Lindenmeyer and Bell JJ dismissed the appeal, concluding that:
... 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.35
This explicit rejection of the ‘natural parent preference’ approach was followed by the Full Court in Re C and D, where it affirmed parent orders in favour of a misattributed father (discussed in further detail below), and in Re Evelyn, though in that case care of the child (born via a traditional surrogacy arrangement) was returned to the genetic and gestational mother.36 During this period, the FLA specified that one of the principles underlying the objects of Part VII of the Act relating to children was that ‘children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together’.37 Nonetheless, there was no legislative or common law presumption in favour of legal parents. Rather, the Act set out a long list of factors which the court was required
34 Jones v Darragh; Department of Community Services et al (Interveners) (1992) 15 Fam LR 757. 35 Rice & Miller (1993) 16 Fam LR 970, 974 36 Re C & D [1998] FamCA 98 (1 July 1998). Re Evelyn [1998] FamCA 55. 37 Family Law Act 1975 (Cth) s 60B.
209 Chapter Five – Parenting Orders to consider when determining which parenting orders were in the best interests of the child in question.38 In an era in which ‘fathers' demands for increased parenting rights’ were central to public and parliamentary discussions about family law reform,39 the 2006 amendments to the FLA restructured this process. The reforms created two ‘primary’ considerations, (the ‘benefit to the child of having a meaningful relationship with both of the child’s parents’ and the ‘need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence’) and then a long list of ‘additional considerations’.40 These ‘additional considerations’ include inter alia the views of the child (in light of the child’s maturity or level of understanding), the nature of the child’s relationships with parents and others, the parenting capacities of the parents and the child’s cultural rights.41 What exactly these changes meant in disputes where a non‐legal parent sought parenting orders regarding a child has been a matter of some confusion.42 For example, in Mulvany, Finn J remarked:
It is indeed unfortunate that … the legislation does not give some clearer indication of the weight to be attached to the child’s relationship with a person other than his or her parent, compared with the child’s relationship with the natural parent in the determination of proceedings between a parent and a person other than a parent. 43
38 Family Law Act 1975 (Cth) s 68F (Registered Id: C2006C00193 Incorporating amendments up to: Act No. 23 of 2006. Superceded). 39 Helen Rhoades, 'Yearning for Law: Fathers' Groups and Family Law Reform in Australia' in Richard Collier and Sally Sheldon (eds), Fathers' Rights Activism and Law Reform in Comparative Perspective (Hart Publishing, 2006) 125, 125. 40 See Family Law Act 1975 (Cth) s 60CC. 41 See extracts in Appendix 1 and 2 of the best interests pathway pre‐2006 and as of August 2018. 42 Burton & Churchin and Anor [2013] FamCAFC 180 [50]. 43 Mulvaney & Lane [2009] FamCAFC 76 (12 May 2009) [15] (Finn J); Yamada & Cain [21]. Also cited in Vargas and Anor and Mann and Anor [2010] FMCAFAM 20 [15] (Neville FM). See also Donnell v Dovey [2010] FamCAFC 15 (10 February 2010) [93], [95]‐[96] (Warnick, Thackray & O'Ryan JJ); Mulvany & Lane [2009] FamCAFC 76 (12 May 2009) (Finn, May and Thackray JJ).
210 Chapter Five – Parenting Orders
It is worth noting the slippage between ‘parent’ and ‘natural parent’ here. One of the problems caused by the rhetoric of biotruth surrounding legal parentage is that judges lack the terminology to differentiate between a legal parent (who may or may not also be a biogenetic parent) and a biogenetic parent (who may or may not also be a legal parent). Section 60CC(2A), added in 2011 as part of the family violence reforms, specifies that, of the two primary considerations, the court must give greater weight to the need to protect the child from harm. But the Act remains silent about the relative weight of the primary and additional considerations. Some judges have understood the restructuring of the best interests factors into ‘primary considerations’ and ‘additional considerations’ as creating a hierarchy in which the ‘primary considerations’ necessarily have greater weight. For example, Brown J describes the primary considerations as ‘twin pillars’ on which the FLA provisions relating to children rest.44 A number of early post‐2006 reform judgments took this elevation of ‘the benefit of a meaningful relationship with both parents’ to a primary consideration as a shift back towards the ‘natural parent preference’. For example, Faulks DCJ in Hood & Cormack interpreted the changes to mean that the Act affords ‘to parents a primary position in accordance with s 60CC(2) in considering the benefit to the children of having a meaningful relationship with a parent (the Act says both of the child’s parents) over a relationship with other parties’.45 At its extreme, this approach demands, as one independent child’s lawyer put it, that the ‘only way the Court can meet the Objects of the Act is for the children to live with their parents, unless there would be risk of harm to the children’.46 This echoes directly the ‘natural parent preference’ which dominated prior to Rice & Miller.47 A related approach taken by the trial judges in Mulvany & Lane and Clarkson & Zammit is to apply the ‘meaningful relationship’ consideration ‘to the
44 Mazorski v Albright [2007] FamCA 520 [3] (Brown J). 45 Hood & Cormack and Anor [2008] FamCA 774 (12 September 2008) [69]. 46 Hood & Cormack and Anor [2008] FamCA 774 (12 September 2008) [60]. 47 Rice & Miller (1993) 16 FamLR 970.
211 Chapter Five – Parenting Orders mother only since the respondent [in both cases, a misattributed father who had functioned as a parent for the child since birth] is not a parent’. 48 This interpretation, and impliedly, the shift back towards the ‘natural parent preference’ was explicitly criticised by the Full Court in the appeal judgement of Mulvany & Lane. 49 Finn J found that it was not open to interpret s 60CC(2)(a) to the effect that:
… where a child only has one parent participating in the parenting proceedings, it will be a primary consideration in determining the child’s best interests, that the child have a meaningful relationship with that parent. The legislation does not say this. Indeed it could well be asked why, if his Honour was prepared to place an interpretation on s 60CC(2)(a) other than an interpretation clear on its plain words, did he not interpret the expression ‘parents’ to include the father in this case?50
May and Thackray JJ came to a similar conclusion, finding that while Howard FM was correct to find that ‘the father was not a ‘parent’ within the meaning of the Act’, he nonetheless erred in letting that conclusion ‘affect the process of reasoning by which he reached his decision’.51 More specifically, May and Thackray JJ expressed concern that:
In placing what we regard as undue emphasis on the maintenance of the relationship between S and his mother, the learned Federal Magistrate appears to have overlooked the benefit to S of maintaining a ‘meaningful relationship’ with the father.52
This rejection of the ‘parents have primacy’ approach has been confirmed in a number of subsequent Full Court decisions, confirming instead the Rice & Miller view
48 Clarkson & Zammit [2014] FCCA 1099 (30 May 2014) [42] (Phipps J). Mulvany & Lane [2008] FMCAfam 473 [20] (Howard FM). 49 Mulvany & Lane [2009] FamCAFC 76 (Finn, May and Thackray JJ, 12 May 2009), [12]. 50 Ibid [12]. 51 Ibid [75]. 52 Ibid [106].
212 Chapter Five – Parenting Orders that there is no presumption in favour of a parent as opposed to a non‐parent.53 For example, in Donnell & Dovey, Warnick, Thackray and O’Ryan remarked that:
In a particular case, the maintenance of a meaningful relationship with a non‐ parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent.54
Similarly, Yamada & Cain, the Full Court explicitly distinguished the functions of legal parentage and parenting orders, commenting that:
The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting—and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.55
Even with a focus on the quality of parenting as it affects the child’s best interests, it is unclear how exactly judges should address the best interests framework when faced with a non‐legal parent’s claim for parenting orders. In a number of cases, judges have simply considered ‘the benefit to the child of a meaningful relationship’ with a non‐legal parent under s 60CC(2)(a) as one of the primary considerations. This was the approach of Thackray and May JJ regarding a misattributed father in Mulvany & Lane, and has also been applied by trial judges to step‐fathers in Jones & Azarac and Budd & Allison.56 The Full Court in Donnell & Dovey, however, countered this flexible approach, indicating that, while it may be appropriate to consider a child’s meaningful relationship with a non‐legal parent, to treat it as a primary consideration may amount to an appealable error.57 Similarly, in Burton & Churchin, the Full Court found that the trial
53 Ibid; Yamada & Cain [2013] FamCAFC 64 (26 April 2013) (Thackray, Murphy & Macmillan JJ); Burton & Churchin and Anor [2013] FamCA 597 (16 August 2013). 54 Donnell v Dovey [2010] FamCAFC 15 (10 February 2010) [101] (Thackray & O'Ryan JJ). 55 Yamada & Cain [2013] FamCAFC 64 [27], emphasis in the original. 56 Jones & Azarac [2012] FamCA 872 (18 October 2012) [124]‐[126] (Murphy J); Mulvany & Lane [2009] FamCAFC 76 (12 May 2009) [105] (Thakray and May JJ); Budd & Allison [2008] FamCA 1048 (14 November 2008) [7]. 57 Donnell & Dovey [2010] FamCAFC 15 (Warnick, Thackray & O'Ryan JJ, 10 February 2010) [116].
213 Chapter Five – Parenting Orders judge’s extension of the primary considerations regarding ‘meaningful relationship’ to the step‐mother and aunt as an error which meant the decision could not stand.58 Yet this did not mean that ‘a meaningful relationship with a parent is the only consideration going to a child’s best interests’.59 Indeed, on the facts in Burton & Churchin, the Full Court expressed doubt whether the mother (the only surviving parent, and a ‘person of interest’ in the investigation of the father’s death) could facilitate a meaningful relationship with the child, finding that any relationship with the mother carried a level of risk to the child.60 The most commonly accepted approach to the best interests pathway dilemma for non‐legal parents is to use the catch‐all factor in s 60CC(3)(m) to ‘work around’ the parents‐only limitation of the primary ‘meaningful relationship’ consideration.61 This was the approach endorsed by the full court in Donnell & Dovey, who emphasised that despite the primary/additional considerations structure, the court’s discretion to meet the child’s best interests was still ‘at large’, and may sometimes mean that a child’s relationship with a non‐parent be assessed as more significant than the child’s relationship with a parent.62 In Connor & Bourke, Altobelli FM described s 60CC(3)(m) as ‘a rather artificial way to get around what was probably a drafting oversight’.63 Finally, in cases such as Potts & Bims, Aldridge & Keating and Fello & Sternfeldt, judges have treated the parent‐specific sections, including the ‘meaningful relationship’ primary consideration as ‘falling away’ when the dispute involves a non‐legal parent.64 This was the approach taken by Finn J in Mulvany, who suggested that in parent / non‐
58 Burton & Churchin and Anor [2013] FamCAFC 180 [48], [56]. 59 Ibid [48], [56]. 60 Burton & Churchin [61], [63]. 61 Family Law Act 1975 (Cth) s 60CC(3)(m): ‘any other fact or circumstance that the court thinks is relevant.’ 62 Donnell v Dovey [2010] FamCAFC 15 (10 February 2010) [99]‐[101]. 63 Connor & Bourke & Anor [2008] FMCAfam 69 (21 December 2007) [47] (Altobelli FM). This approach was also followed in Connors & Taylor [2012] FamCA 207 (5 April 2012) [93]. 64 Potts & Bims and Ors [2007] FamCA 394 [8]; Mulvany & Lane [2009] FamCAFC 76 (12 May 2009) (Finn J); Aldridge & Keaton [2009] FamCAFC 229 (22 December 2009) [112] (Bryant CJ); Fello & Sternfeldt [2014] FamCA 312 (15 May 2014) [84]; Kitsannis & Netopoulis and Anor [2010] FamCAFC 214 (1 November 2010) [74].
214 Chapter Five – Parenting Orders legal parent cases, the court should set aside the ‘meaningful relationship’ consideration and only ‘only reach its determination in parenting proceedings on an application of s 60CC(2)(b) (protection from harm) and of the additional matters in s 60CC(3) so far as they expressly or impliedly refer to a person other than a parent’.65 In Donnelly & Dovey, the Full Court briefly discussed this approach, and appeared not to object to it, but ultimately took the ‘work around’ approach describe above.66 The Family Law Council has expressed its support of the Yamada & Cain emphasis on quality of parenting rather than parenthood, but has expressed concerns that ‘the current decision making framework in Part VII does not adequately support this position’.67 The three hurdles discussed above could be moderated to some extent by the amendments suggested by the Family Law Council in its 2013 Report on Parentage. There, the Family Law Council argued for a decreased emphasis on ‘parents’ within parenting orders determinations, recommending that ‘both parents’ in s 60B be amended to ‘parents’, and that references throughout the decision making framework for parenting orders be amended to also refer to ‘other significant adults’ or ‘other people of significance to the child’ where appropriate.68 This could strengthen the ability of the family courts to address children’s needs regarding day‐to‐day care and decision‐ making. Such changes would not, however, address the other functions at play in legal parentage – particularly regarding the child’s legal kinship identity and ensuring that testing and disclosure o the child’s origins information is done in a child‐focused way.
XI SAME DESTINATION? CAN PARENTING ORDERS RESOLVE THE PROBLEMS OF LEGAL PARENTAGE?
This next section analyses the seven publicly available judgments in cases where misattributed fathers have sought parenting orders regarding the child. It asks how
65 Mulvany & Lane [2009] FamCAFC 76 (12 May 2009) [16] (Finn J). 66 Donnell v Dovey [2010] FamCAFC 15 (10 February 2010) [120]‐[122] (Warnick, Thackray & O'Ryan JJ). 67 Family Law Council, Report on Parentage and the Family Law Act (2013), 31. 68 Ibid, Recommendation 2.
215 Chapter Five – Parenting Orders determinations of parenting orders are shaped or limited by the structural and rhetorical aspects of legal parentage as described in Chapter Three and Four.
A The bundled structure of legal parentage limits parenting orders
Under the current structure of legal parentage, judges are able, when it is in the child’s best interests, to unlock parental responsibility from legal parentage – by making parenting orders allocating a child’s care and or parental responsibility to a non‐legal parent. Whether such orders are made depends on a complex of ‘push’ (away from the legal parents) and ‘pull’ (towards the non‐legal parents) factors. Courts consider such questions as, are the legal parent(s) present and competent and do they use their parental responsibility or parental authority to object to the non‐parent’s involvement? And is the non‐legal parent’s relationship with the child significant for the child so that it would be in the child’s best interests to continue it?
1 Parenting orders can help preserve and protect healthy social parenting relationships between children and misattributed fathers.
The flexibility surrounding parenting orders allows for greater recognition of ‘psychological parents’ than within determinations about legal parentage. For example, in a number of the misattributed paternity and stepparent parenting order cases, judges nonetheless refer to the misattributed father or step‐father as ‘the father’, particularly where he was a biogenetic parent of another child within the family and/or the biogenetic father was not part of the proceedings.69 In cases like Mulvany & Lane, where there was evidence that the child regarded the misattributed father as a parent, and that he in turn had taken a hands‐on parenting role, judges were able to make parenting orders to preserve the care and decision‐making aspect of the parent‐child relationship. Mulvany & Lane was decided after the 2006 amendments to the best interests framework made ‘the benefit of a meaningful relationship’ with ‘both parents’ a primary
69 Ibid; Mulvany & Lane [2008] FMCAfam 473.; Henry & Washburn [2010] FMCAfam 165 (3 March 2010); Styles & Palmer [2014] FamCA 383 (11 June 2014); Radcliffe & Sayer [2012] FMCAfam 342; Jones & Azarac [2012] FAMCA 872 (18 October 2012). While a comprehensive comparison has not been undertaken here, a number of the cases where misattributed fathers sought parenting orders and were unsuccessful were also cases where judges did not refer to them as ‘the father’: Madsen & Kaplan [2012] FMCAfam 251 (22 March 2012). ‘the applicant’ and Clarkson & Zammit [2014] FCCA 1099 (30 May 2014) ‘the respondent’.
216 Chapter Five – Parenting Orders consideration. There, the father sought parenting orders for time with the six‐year‐old child and an order preventing the mother from re‐locating with the child back to Hong Kong, where she would have access to family support and employment prospects.70 Shortly before the trial, a DNA test showed that there was no genetic connection between father and child. In an affidavit, Mr Mulvany said:
Whilst I am upset about S’s paternity and the fact Ms Lane has lied to me for so long, this has done nothing to change the way I feel about S. As far as I am concerned he is still my son and I love him dearly. I intend to proceed with my original application, that is, that S remain living here in Australia with me.71
The mother’s proposal displayed a willingness to ‘promote a close ongoing lifelong relationship between S and the Applicant’ by creating a trust fund in Australia to fund travel and accommodation costs for Mr Mulvany to visit S in Hong Kong three times a year and vice versa.72 This proposal was accepted by Howard FM, who found that while Mr Mulvany was not a ‘parent’ for the purposes of the Act, he nonetheless had standing as a ‘person concerned with the care, welfare and development of the child’ under s 65C. 73 In determining the best interests of the child, however, Howard FM held that Mr Mulvany’s status as a non‐legal parent meant that his relationship with the child could not be a primary consideration under s 60CC(2)(a). Therefore the only ‘relevant’ primary consideration, in Howard FM’s view, was ‘the benefit to the child of having a meaningful relationship with the mother’.74 Finding that the mother was ‘only going to be happy and well settled if she is living in Hong Kong’, Howard FM ordered that child live with the mother in Hong Kong so that he could have a meaningful relationship with the mother.75 Mr Mulvany’s appeal was allowed by the Full Court, with Finn, May and Thackray JJ finding that Howard FM had erred by taking an inconsistent approach – treating Mr
70 Mulvany & Lane [2008] FMCAfam 473 [27]. 71 Ibid [9]. 72 Ibid [37]. 73 Ibid [12] and [14] respectively. 74 Ibid. 75 Ibid [32] and [33].
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Mulvany as a parent in some instances but not in others.76 May and Thackray JJ went as far as to argue that Mr Mulvany should have been treated as a ‘parent’ under s 60CC:
If the father had adopted S, his Honour would have been obliged to consider the benefit to S of having a meaningful relationship with him. If the father had been the biological father, but never lived with S, his Honour would still have been obliged to consider the benefit to S of having a meaningful relationship with him. Why should a different approach be taken because it was discovered that the boy was the product of an extramarital liaison?77
No order had been made at first instance regarding parental responsibility, but May and Thackray JJ concluded that ‘ it may have been his Honour’s intention that the mother and father share parental responsibility’.78 The Full Court allowed the appeal and ordered a retrial – indicating that a misattributed father who has played a functional parenting role since birth, and is willing to continue parenting the child, can obtain orders for care and decision‐making regarding the child to a similar extent to a legal parent. Parenting orders were also made protecting the care aspects of social parent‐ child relationships in: Re C & D (child to live with mother and biofather and spend every second weekend plus a weekday evening and half school holidays with the misattributed father); C & G & M (misattributed paternity children to live with mother and to spend one weekend a month with their misattributed father and siblings, and one weekend a month with biofather and his family); Henry & Washburn (sole parental responsibility to the father, both children to live with him and to have alternate weekends plus half school holidays with the mother due to concerns re her mental health and drug use);
76 Mulvany & Lane [2009] FamCAFC 76 (12 May 2009) [6] (Finn J) and at [75]‐[77] (May and Thackray JJ). 77 Ibid [77]. 78 Ibid [114].
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K‐A & K‐P (mother allowed to relocate interstate with child orders for weekly phone contact with the misattributed father, plus 4 weeks of school holiday time with the child in her new home city conditional on the misattributed father submitting to a psychiatric evaluation).79 The full court in Re C & D cited with approval the remarks of the trial judge, Hannon J that the s 60B objects of Part VII of the FLA meant that:
… children have a right to contact, on a regular basis, not only with both their parents, but with other people significant to their care, welfare and development which would include not only a person whom a child regards as his or her biological parent, but with members of the extended family of that person, if they are significant persons in the life of the child. The qualification to this provision is that the principles set out in the section do not apply when "it is or would be contrary to a child's best interests" and therefore it is incumbent upon the court to embark upon a dual exercise of inquiring as to who are significant persons in the life of the child and whether it would be contrary to his best interests to have contact with them or any of them.80
By the same token, where there was little in the way of a caregiving history between misattributed father and child in Madsen & Kaplan, no parenting orders were made. In Madsen & Kaplan, the parties entered into an arranged marriage within a particular cultural community.81 The parties separated in April 2010 when the child, Y, was nine months old, but the mother’s evidence was that she had never lived with the husband after the child’s birth and that the child had always been in her care or the care of other relatives, with only a few supervised visits. The husband sought parenting orders for time with the child, and the mother in response claimed the applicant was not the child’s biogenetic father. Parentage testing was ordered, but the husband refused to participate in testing. Ms Kaplan produced a letter from a doctor written in 2008 providing the results of a testicular biopsy and advising that Mr Madsen was
79 Re C & D [1998] FamCA 98 (1 July 1998); C & G & M [2001] FMCAfam 83 (25 July 2001); Henry & Washburn [2010] FMCAfam 165 (3 March 2010); K‐A & K‐P [2005] FMCAfam 62 (7 March 2005). 80 Re C & D [1998] FamCA 98 (1 July 1998) [4.2] (Nicholson CJ, Fogarty and Baker JJ). 81 Madsen & Kaplan [2012] FMCAfam 251 (22 March 2012). Unusually, the matter was decided on the papers as no hearing was conducted.
219 Chapter Five – Parenting Orders infertile and sperm donation would be the ‘best way forward’.82 On the basis of this evidence, Brewster FM held that the presumptions of parentage (arising from the parties being married and from the husband being listed as father on the birth certificate) were rebutted on the balance of probabilities, and proceeded on the basis that the husband was not the child’s father (though was not willing to make a definitive declaration because of the bare possibility that the husband could nonetheless father a child).83 In considering the best interests of the child regarding Mr Madsen’s application for time with the child, Brewster FM considered Mr Madsen’s relationship with the child under s 60CC(3)(b): ‘the nature of the relationship of the child with (i) each of the child’s parents; and (ii) other persons (including any grandparent or any other relative of the child)’. He compared Mr Madsen’s position to that of a step‐parent:
Where a step‐parent has lived with a child of a party to the relationship for a significant time a close bond often grows between the step‐parent and the child. This frequently results in orders being made permitting a step‐parent to spend time with the child even though this is opposed by the child’s biological parent or parents.
While no Family Report was conducted, Brewster FM was happy to infer from the papers that in comparison to a long‐term and significant step‐parent relationship, ‘there would not be the type of close relationship between the applicant and the child’:
I can infer that the applicant is a person known to the child and the child may well be pleased to be in his company. However I can infer that, at least as compared to the type of relationship in the example I gave, the relationship is not likely to be an important one for the child.84
Brewster FM was therefore not ‘satisfied that the applicant, to paraphrase section 60B(2)(b), is a person of such significance to the child’s care welfare and development
82 Ibid [13]. 83 Ibid [15], [16]. 84 Ibid [27].
220 Chapter Five – Parenting Orders as to require me to override the mother’s decision in this respect’.85 He thus refused the husband’s application for parenting orders. A functional parenting relationship between misattributed father and child was therefore a threshold requirement before any parenting orders could be made, but was not sufficient on its own. For example, in Clarkson & Zammit, the misattributed father had parented the two year old child from birth, and had been the sole primary carer for most of the preceeding year, but as discussed in greater detail below, was unsuccessful in obtaining any parenting orders.86 Non‐genetic or disputed paternity fathers have been more successful in cases where their functional parenting relationship with the child coincides with concerns about the capacity of one or more of the biogenetic parents to parent safely. In Henry & Washburn, for example, DNA tests showed that Mr Henry was the genetic father of only one of the two children born during the relationship. After separation, the children had lived primarily with the mother, until she had an episode of drug‐induced psychosis, and they moved into Henry’s care. Terry FM gave significant weight to the family report writer’s conclusion that ‘whilst the father is not the biological father [of Y] he is nonetheless the child’s psychological father’.87 Terry FM acknowledged that, due to the fact of genetic non‐paternity, maintaining a meaningful relationship between Y and the father could not be ‘a relevant primary consideration’.88 Nonetheless, she treated it as an important consideration and found that Y’s relationship with the father may be at risk if Y returned to the mother’s care because ‘the mother could not be counted on to promote [Y]’s relationship with the father if [Y] lived with her, and might even, by repeated emphasis to [Y] about his biological paternity, undermine it.’89 Terry FM also expressed concerns about the mother being ‘capable of losing control and being verbally abusive’ and was not satisfied that the mother had stopped using drugs, putting her at risk of future psychotic episodes.90 Terry FM therefore ordered that the father have sole
85 Ibid [38]. 86 Clarkson & Zammit [2014] FCCA 1099 (30 May 2014). 87 Henry & Washburn [2010] FMCAfam 165 (3 March 2010) [69]. 88 Ibid [68]‐[69]. 89 Ibid [68]‐[69]. 90 Ibid [75], [112].
221 Chapter Five – Parenting Orders parental responsibility for both children, and that they live with him but spend time with the mother. Similarly, in Hadley & Pock, the mother had serious mental health issues affecting her capacity to care for the children, and the children were all in the father’s care. The Department of Human Services had been heavily involved with the family, and there was evidence that the mother was a ‘perpetrator of both family violence and abuse of the children’.91 The mother sought an order for parentage testing for the youngest child, alleging that the child had been conceived during a liaison with a former partner. Roberts FM refused the application, giving little credit to the mother’s evidence and remarking that ‘an order for DNA testing as sought by the mother would only do more harm than good’.92 The father was ordered to have sole parental responsibility of all the children, with time with the mother to be at the discretion of the older children (aged 15 and 17), and every alternate weekend and one weekday evening for the youngest.93 Notably, as paternity testing was never conducted, the father retained his status as legal parent of all three children, so this case does not strictly fall within the category of misattributed paternity fathers seeking parenting orders. Kinship carers who claim parenting orders have tended to receive a similar response to misattributed fathers who had a functional parenting role. That is, they receive ready affirmation of their role where the legal parents have been unable to meet the child’s needs,94 but more difficulty where their claim is challenged by an
91 Hadley & Pock [2011] FMCAfam 117, [35] (Roberts FM). 92 Ibid [142]. 93 See also Albert & Edell [2010] FMCAfam 1487 [39] and [53], in which Halligan FM took what he described as the ‘very extreme step’ of making an order which would ‘deny the child … of an opportunity to know his father’ due to concerns regarding the father’s past conviction for family violence against the mother while she was pregnant, the possibility that the father may be deported due to a failed asylum claim, and the ‘emotional impact’ of disclosing to the child that he had a different biofather to his three older siblings. Bryan & Wardell [2008] FamCA 598 (1 August 2008). also concerned a biofather who had never met the child, and who had perpetuated family violence on the mother and presented a level of risk for the child, however Mr Bryan withdrew his application after the fourth day of the trial. 94 See, eg, Yamada & Cain [2013] FamCAFC 64 (26 April 2013) where parents were transient and had drug issues; Knightley & Brandon [2013] FMCAfam 148 (1 February 2013) where mother had died and father was in jail.
222 Chapter Five – Parenting Orders unobjectionable parent, even if that parent has no or little history as a primary carer for the child.95 While they can be effective in protecting the care and decision‐making aspects of a social parenting relationship with a misattributed father, parenting orders only act on one of the four functions of legal parentage. This means that the flexibility and focus on the best interests of the child which characterise the parenting order process are limited to questions of care and decision‐making. The next sections argue that the bundled structure of legal parentage limits the effectiveness of parenting orders in addressing the needs of disputed paternity children in terms of their legal kinship identity and their origins information.
2 Parenting orders cannot address children’s legal kinship identity
Even where parenting orders are granted to a misattributed father, they cannot address the child’s legal kinship identity. Where a court has made a finding (and/or declaration) that a misattributed father is not a legal parent, there is a change in the status of the relationship between the child and the misattributed father (and their respective kin) which cannot be moderated by parenting orders. The misattributed father may still seek and obtain parenting orders, but he does so not as a parent but as a ‘person concerned’ under s 65C(c). This meant, for example, that in Re C & D, the trial judge’s order that the mother not change the child’s surname (an aspect of the child’s legal kinship identity which he shared with the misattributed father) was overturned by the Full Court.96 A determination re‐aligning legal parentage with biogenetic parentage may also mean that children lose their legal status as siblings to one another.97 Parenting orders can soften the living and decision‐making arrangements around this change of status, but they cannot prevent the change in status once the evidence regarding
95 See, eg, (overturned on appeal) Donnell & Dovey [2009] FMCAfam 515; Hood & Cormack [2008] FamCA 774 (12 September 2008); Hurst & Gersten [2014] FamCA 117. 96 Re C & D [1998] FamCA 98 (1 July 1998). 97 See, eg, C & G & M [2001] FMCAfam 83 (25 July 2001).
223 Chapter Five – Parenting Orders biogenetic parentage is accepted by the court. The only way to avoid this is for the court to refuse parentage testing orders, as occurred in Hadley & Pock.98 To assume that legal kinship identity will necessarily follow genetic parentage reflects a particular cultural view of family and identity. This biotruth view of family is not necessarily shared by all of the diverse families which the family law system needs to serve, or even (as discussed in Chapter Three) by the statutory exceptions to the ‘born or begotten’ definition which ‘deem’ legal parentage in situations of adoption, donor conception or surrogacy. A stark contrast in cultural views on legal kinship identity was visible in Madsen & Kaplan, where the husband explained his refusal to participate in genetic parentage testing, and his views regarding the child’s legal kinship identity:
According to (omitted) culture when a man and woman marry the man takes on full responsibility for the woman and any resulting children…. Children of the marriage are the furthering of the community and are part of the considerations in determining dowry and responsibility…. The simple reason for my refusal is that questioning fatherhood is taboo in my culture. To submit to a parentage test would be seen as an extremely insulting, shameful and destructive act in my culture. …
When I married Ms Kaplan, under my (omitted) cultural heritage I took on full responsibility for any children which came in the marriage. While I believe I am the biological father of Y I realise of course that it is possible that I am not. Under (omitted) culture biological or genetic parenthood is largely irrelevant. As Ms Kaplan and I are married, Y is my child regardless and I have the responsibility to give her the best upbringing possible.
Currently the whole of both [parents’] communities accept me as being Y’s father and her status and wellbeing in the community is assured. If I subject myself to the test and it by chance shows I am not her biological father her status is lowered in our culture and the basis upon which the marriage between myself and Ms Kaplan was arranged and proceeded is fractured. At the very least it would cause a major dispute about repayment of dowry and future responsibility for her care leading to possible conflict between the two families. At worst Y and Ms Kaplan could be ostracised from our community regardless of my personal wishes in the matter.
98 Hadley & Pock [2011] FMCAfam 117 (Roberts FM).
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While this is a decision that Ms Kaplan can make for herself, I believe it is unfair for her to make such a drastic decision on the future wellbeing of our daughter.99
Brewster FM noted that Ms Kaplan had a very different understanding of (omitted) culture and disagreed that paternity testing was inappropriate within it. He therefore rejected Mr Madsen’s appeal to ‘have regard to (omitted) culture in making a decision’, concluding that:
The mother is (omitted) and, one assumes, familiar with the (omitted) culture. She can bring up the child in accordance with her perceptions of that culture. She should not however be required to comply with any aspect of that culture which she considers to be inappropriate. If her position is contrary to (omitted) culture that is a position which she is entitled to take. She is entitled to call in aid Australian laws and the Western traditions and culture that underlie those laws. This court should not impose (omitted) culture on the mother against her will. Nor, for reasons I will explain, on the child against her mother’s will.100
In framing the issue as one of imposing a minority culture on the mother against her will, Brewster FM sidestepped any consideration of the child’s legal kinship identity as a distinct from her care arrangements and her genetic origins. In Madsen, the very young age of the child and the lack of a care history by the husband meant that her legal kinship identity as a child of the husband and member of his kin network may not have held much significance for the child. Nonetheless, the bundled structure of legal parentage meant that there was no discretionary space for the judge to consider the impact for the child of a change to her legal kinship identity.
3 Parenting orders cannot address children’s origins information
Parenting orders also cannot ensure that testing or disclosure of a child’s genetic origins happens in a child‐centred way. This means that parenting orders cannot resolve the harm to a child when their origins information (and sometimes secrets and lies surrounding this information) is used instrumentally by parents in post‐separation disputes. Rather than treating the child’s origins information as something belonging to
99 Madsen & Kaplan [2012] FMCAfam 251 (22 March 2012) [11]. 100 Ibid [1].
225 Chapter Five – Parenting Orders the child, their paternity becomes the subject of secrets and lies between the adults, to be used for adult purposes, such as to end CS liability, claim a CS refund, or to undermine a misattributed father’s claim for time with the child. For example, in V & V, where the husband sought a declaration that he was not the child’s parent and a refund on child support, the parties had struggled to conceive, even using IVF and donor sperm. The wife alleged that they had discussed the suggestion that she ‘sleep with someone else to become pregnant’ and that:
the husband was at all times aware that he was not the father of L and could not have been, but that she was accepted without further question as his child and treated as such and that the present application was only brought about by her failure to accept the resumption of their relationship.101
4 Parental Autonomy v Courts’ jurisdiction to make parenting orders
Even when care and decision‐making are unbundled from the default parental responsibility that comes with being a legal parentage, something still remains. Parental autonomy remains with the legal parents as a form of jurisdiction over ‘your’ child so that the court cannot make parenting orders interfering in your care or decision‐making unless there is a dispute between parents or it is in the child’s best interests to override. Status as a ‘parent’ therefore carries significant weight in whether they can be excluded from a child’s life, and whether they have the power to exclude others. For a non‐legal parent, being significant to a child via a history of care may help convince the court to use its jurisdiction to limit parental autonomy, but it cannot earn the person any parental autonomy of their own. Parental autonomy, in the words of the Full Court in VR & RR, is the idea that:
any intervention by the Court in the due performance of an aspect of parental responsibility that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner that parent deems appropriate should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.102
101 V & V [2002] FMCAfam 408 (19 November 2002) [24]. 102 VR & RR [2002] FamCA 320 [29] (Kay, Coleman and Warnick JJ).
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Here, the Full Court drew on US doctrine regarding ‘parental autonomy’ and on remarks by Gaudron J in AMS v AIF that the welfare jurisdiction is ‘not in principle supervisory’ but rather, is generally ‘exercised when there is some risk to a child's welfare’.103 Despite the shift in language within Australian family law legislation since 1996 to eradicate any reference to parental rights or ‘custody’ of children, commentators have observed that the question of parental entitlements remains at the heart of the FLA provisions regarding children.104 As Aleardo Zhanghellini notes, the attempt to banish parental entitlements has resulted in conceptual confusion:
Since children's interests do not prescribe particular parental configurations such as the heterosexual nuclear family, in designing a system on the allocation of parental responsibility we need to reach beyond children's interests and the twin notion of parental responsibility. This is not the same as saying that children's interests are irrelevant to answering the question of who should have parental
responsibility. What it does mean is that children's interests, even if we accord them primacy, do not tell us enough.105
Biotruth rhetoric (discussed previously in Chapter Four) helps hold together the assumption that children’s interests neatly align with parental responsibilities assigned to biogenetic parents, sidestepping, but not resolving the conceptual confusion Zanghellini describes. Parental autonomy therefore appears to function as a particular kind of right – a ‘natural’ jurisdiction over the child via default parental responsibility. Parental autonomy can be overridden only where the jurisdiction of the family court (or state / territory children’s courts) is activated. This happens either because parents cannot agree, because the child’s welfare will be advanced or in what is referred to as the ‘welfare jurisdiction’ of the family courts under s 67ZC, a section used primarily where there is something special about a medical decision for a child that puts it beyond
103 Re Phillip B 92 Cal App 3d 796; AMS v AIF [1999] HCA 26 [86], cited in VR & RR [2002] FamCA 320 [31] and [32] respectively. 104 Alleardo Zanghellini, 'Who is Entitled to Parental Responsibility? Biology, Caregiving, Intention and the Family Law Act 1975 (Cth): A Jurisprudential Feminist Analysis' (2009) 35 Monash University Law Review 147, 148; Helen Rhoades, 'The Rise and Rise of Shared Parenting Laws: A Critical Reflection' (2002) 19 Canadian Journal of Family Law 75. 105 Zanghellini, above n 104.
227 Chapter Five – Parenting Orders parental authority.106 Unless the court’s jurisdiction is activated in one of these ways, ‘parental autonomy’ includes the right to exclude non‐legal parents from the child’s life. Where a non‐legal parent claims parenting orders, the family courts appear to exercise their ‘welfare jurisdiction’ in two (often overlapping) scenarios: first, where the legal parent is unable to provide adequate care (a ‘push’ factor indicating that the child’s best interests lie away from the legal parent) and/or where the child has a strong bond with the non‐legal parent such that breaking that bond would be detrimental to the child (a ‘pull’ factor indicating that the child’s best interests are served by continuing the relationship with the non‐legal parent). In Madsen & Kaplan, Brewster FM compared the way in which parental autonomy limits the courts’ jurisdiction to make parenting orders to the ‘fundamental right of parents to make decisions concerning the care, custody and control of their children’.107 For Brewster FM, the mother’s decision to exclude Mr Madsen amounted to an exercise of parental responsibility, and he concluded that:
In this case I am not persuaded that the best interests of Y clearly require me to override the decision of her mother that the applicant should play no part in her life. I am not satisfied that the applicant, to paraphrase section 60B(2)(b), is a person of such significance to the child’s care welfare and development as to require me to override the mother’s decision in this respect.108
The dispute, therefore, shifted from being one about who was a parent and who should exercise parental authority in relation to the child, to one simply about whether there was any basis for the court to intervene in the mother’s exercise of parental responsibility. Brewster FM could answer the first question purely on a biogenetic basis – reasoning from the testicular biopsy that Mr Madsen was not a genetic father. As for the second question, given that there was no suggestion that the mother’s care was inadequate, and as Brewster FM had concluded that the relationship with Mr Madsen
106 See Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15 (‘Marion’s Case’), and more recently, Re: Kelvin [2017] FamCAFC 258. 107 Madsen & Kaplan [2012] FMCAfam 251 (22 March 2012) [37] citing Troxel v Granville 530 US 57 (2000) (O’Connor J). 108 Ibid [38].
228 Chapter Five – Parenting Orders was not likely to be of any importance to the child, he reasoned that there was no jurisdiction for the court to intervene in the mother’s decision.109 Only three years earlier, Brewster FM had sent a mother to jail for flouting court orders that she facilitate access between her child and the child’s father, who hadn’t seen the child in the six years since separation.110 Brewster FM was reported to say that, ‘[p]arents would not be permitted to “usurp the court and flout court orders” and decide a child could not have a relationship with the other parent’.111 The notion of prioritising the child’s relationships with parents over other relationships is not necessarily a problem in itself. It reflects the idea that first relationships tend to have a greater significance for children because of the role attachment plays in a child’s social, emotional and intellectual development. Certainly, the notion that a parent‐child relationship can be rehabilitated after a break can also be important for children to develop resilience and the ability to repair relationships and reconnect after time apart or conflict. The difficulty appears when ‘parent’ is defined in a way that is at odds with the child’s understanding of their family, and whom they regard and rely on as a parent. The tension between parental autonomy and the family court’s jurisdiction to make parenting orders in the child’s best interests should not be just a two‐way jurisdictional battle. For medical decisions at least, the Australian and UK courts recognise that as children gain legal competence, parental authority gradually gives way to the child’s own personal jurisdiction over themselves.112 In explaining what has come to be known as ‘Gillick competence’, Lord Scarman remarked:
Parental rights … do not wholly disappear until the age of majority … The principle of the law … is that parental rights are derived from the parental duty and exist only
109 Madsen & Kaplan [2012] FMCAfam 251 (22 March 2012) [38] (Brewster FM). 110 Caroline Overington, 'Mother Jailed for Denying Access to Boy's Dad', The Australian, 5 May 2009, 1. 111 Ibid. 112 Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112 (UK House of Lords). The Gillick approach was affirmed by the High Court in Marion’s case: Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15.
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for so long as they are needed for the protection of the person and property of the child.113
For parental autonomy to operate in a child‐focused way, it must make some space for the child’s own jurisdiction and their own developing knowledge of their family and ability to define their legal kinship identity. These ideas around children’s perspectives on their legal kinship identity and regulation and disclosure of their origins information are discussed further in Chapter Six.
B Biotruth rhetoric seeps into parenting order judgments
The ability of parenting orders to preserve healthy parenting relationships between misattributed fathers and children is also affected by biotruth rhetoric because of the ‘both parents’ norm within the statutory ‘best interests’ framework and within judicial understandings of children’s best interests.
1 Concern about the ‘confusion’ caused by two fathers
In a number of cases, this has manifested as judicial concern about the confusion involved for children where there were ‘two fathers’ on the scene. For example, in Re C & D, decided in 1998, the child had been born during the parties’ ten year marriage.114 When the child was three, the parties separated, and the mother revealed that she had been involved in a longstanding affair with D, whom she argued was the child’s genetic father. Blood tests confirmed this. The husband applied for parenting orders in relation to the child, and was successful at trial in obtaining extensive contact orders (every alternate weekend, half the school holidays and one weekday evening per fortnight) and an order that the child’s surname not be changed. The mother appealed, and D (the biological father, and her current partner) intervened. A key argument put by the mother was that the trial judge’s orders had created a ‘potentially confusing situation’ for the child where he was ‘left in the position of
113 Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 183‐184 (UK House of Lords). 114 Re C & D [1998] FamCA 98 (1 July 1998); C & G & M [2001] FMCAfam 83 (25 July 2001).
230 Chapter Five – Parenting Orders believing he had two fathers’.115 Nicholson CJ and Baker J expressed concern about ‘the child’s obvious confusion over the identity of his father’. Ultimately, Nicholson CJ and Baker J concluded that:
While we commend the husband for maintaining his love and support for the child in what have been most difficult circumstances, we think it apparent that for the sake of the child, he and his family will have to accept a less prominent position in
116 relation to the child.
The Full Court did not overturn the decision giving the husband contact with the child, but allowed the mother’s appeal of the order preventing her from changing the child’s last name to that of the genetic father (and her new partner). The child’s legal kinship identity, then, was to be re‐written to conform to the child’s genetic parentage. The assumption was that a child could only have one ‘real’ father (presumed to be a biological father, unless the adults have intentionally arranged otherwise via adoption or donor conception) who should take a more ‘prominent’ position than any non‐genetic parent who had been caring for the child. What is interesting here is the tension between the Full Court’s insistence, following Rice and Miller and Re Evelyn, that ‘the biological parent does not stand in any preferred position’ and their conclusion that it was necessarily in the child’s best interests that a non‐biological parent would have to ‘accept a less prominent position’ now that the child’s biological father had asserted a position in the child’s life.117 A hierarchy between biological and non‐biological parents persisted, but framed in terms of the child’s best interests. Because the court found that ‘DNA testing had conclusively proven that the husband was not the father’ the fact that the child had regarded the
115 C & G & M [2001] FMCAfam 83 (25 July 2001); Re C & D FamCA 98 (1 July 1998) [8.4.1] (Nicholson CJ and Baker J). 116 Re C & D [1998] FamCA 98 (1 July 1998) [8.4.7] and [8.4.14] (Nicholson CJ, Fogarty and Baker JJ). 117 Ibid [10.10] and [8.4.14].
231 Chapter Five – Parenting Orders husband ‘as his father for the greater part of his life’ was treated as a mere mistake to be corrected.118 Similarly, in C & G & M, where both the genetic and misattributed father sought to stay in the child’s life, Ryan FM expressed concern about this situation as ‘confusing’ for children.119 In C & G & M, the husband and wife had four daughters over the course of a ten year relationship.120 For several years towards the end of that relationship, the wife was having an affair with Mr U and he was identified via DNA testing as the genetic father of the two younger children. Mr U would sometimes visit and was known to all the children as a friend of their mother’s, but he remained living with his wife of over 25 years and their children. The husband was closely involved in the care of all four children, particularly as he had worked part time for many years, and was therefore able to take the children to activities including dancing, Little Athletics, hockey, and arts and crafts.121 In the judgment, Ryan FM referred to the biogenetic father as ‘the father’ and the children’s social father as ‘the husband’. The children referred to the men as ‘Daddy U’ and ‘Daddy J’ respectively.
It is clear from the evidence that the younger children are very confused about the fact of two fathers' involvement in their lives. There is little evidence about the effect on R and M [the older siblings, whose paternity had not been misattributed], other than in their attitude to the wife, of the revelation concerning their half‐ sisters' parentage. Given their ages, they too are likely to be confused and distressed by the late revelation that they did not have the same father as their half‐sisters. Whilst for many children this is unremarkable, it is almost inevitable that having lived with the belief that they enjoyed the same parentage, the realisation that they had been living a lie will also be confusing. For them it has been a bombshell. Its impact has been made more profound as the husband has been unguarded in his distress.122
118 Ibid [8.4.8], citing from the trial judgment. 119 Ibid; C & G & M [2001] FMCAfam 83 (25 July 2001). 120 C & G & M [2001] FMCAfam 83 (25 July 2001). 121 Ibid [72]. 122 C & G & M [2001] FMCAfam 83 (25 July 2001) [71].
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There were many factors here that may have been confusing and distressing for the children – the parental separation, separation from their siblings, their father’s illness, disclosure that someone they had known as their mother’s friend was now ‘Daddy U’, as well as conflict between this new ‘Daddy’ and the Daddy they had grown up with. Yet it is the ‘fact of two fathers involvement in their lives’ which Ryan FM singled out – characterising the children’s home life prior to disclosure as ‘a lie’ and suggesting that the entire parent‐child relationship with the husband was invalidated by the DNA result. There are undoubtedly resonances here with the experiences of those who were not informed that they were adopted or donor‐conceived until late in their childhood or as adults. Helen Riley, for example, describes the trauma and loss of trust experienced by those who discovered late that they were adopted or donor‐conceived.123 Yet it is important here to tease out the children’s own reactions (which were guessed‐at, but not included within the evidence in Ryan FM’s judgment, as there was no Family Report or Independent Children’s Lawyer appointed) from the rhetoric surrounding legal parentage which has come to frame genetic parentage as ‘the truth’ and non‐genetic parentage as ‘a lie’. After separation, the two older children lived with the father and had regular time with the mother, and the two younger children lived with the mother and had time both with the husband and with Mr U. There was a significant degree of conflict with Ryan FM finding that the husband had ‘tried to provoke scenes’ with Mr U.124 To complicate matters further, the husband had inoperable prostate cancer, which was likely to kill him eventually. In terms of parenting capacity, Ryan FM had concerns about the husband’s hostility and tendency to expose the children to his own distress, whereas
123 Helen Riley, Identity and Genetic Origins: An Ethical Exploration of the Late Discovery of Adoptive and Donor ‐ insemination Offspring Status (Queensland University of Technology, 2012) 155‐6. 124 C & G & M [2001] FMCAfam 83 (25 July 2001) [78].
233 Chapter Five – Parenting Orders she concluded that Mr U was a ‘caring and competent parent who can manage these challenges well’.125 In the parenting orders, Ryan FM sought to promote stability for the children and deal even‐handedly with the claims of the husband and Mr U – ordering each to have one weekend a month with the two younger children, plus holiday time. While the weekend periods were slightly longer for the husband (Friday to Sunday, rather than Saturday to Sunday), only Mr U was ordered to have time with the children on Father’s Day. At a number of points in the judgment, Ryan FM remarked on the confusion experienced by the children. Yet at least part of this confusion seemed to stem from the children’s uncertainty about or resistance to the insistence by the mother and biogenetic father that the children’s social parenting relationships be reformulated to align with their biogenetic parentage:
The father is understandably impatient to cement his developing relationship with his daughters. He has waited, he feels, a long time to do so. I accept his and the wife's evidence that the children enjoy his company and are starting to accept him as an important person in their lives. He understands that the children are confused about his status as a father, particularly when contrasted with the husband's. Logically S [the youngest child] has little idea what his significance is. The wife and father have a common understanding that they need to proceed cautiously with the children as he is phased into their lives as their father.126
Ryan FM appears to have regarded this as a necessary re‐formulation, particularly in light of the husband’s illness and shortened lifespan. No orders were made as to parental responsibility, however Ryan FM’s declaration that Mr U was a parent, and order requiring the parties to amend the birth certificate meant that the husband was stripped of both legal parentage and parental responsibility regarding the two younger children. While the discussion of the children’s ‘confusion’ in C & G & M did not explicitly reference the notion of ‘genealogical bewilderment’, the discussions nonetheless suggest that having two fathers, or having a parent‐child bond with the
125 Ibid [82]. 126 Ibid [82].
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‘wrong’ father could be harmful to children.127 More recently in Madsen & Kaplan, Brewster FM expressed concern about the child ‘being given mixed messages’ about her parentage, because the applicant still believed himself to be her father, whereas the mother did not ‘believe that the applicant should be in a position of loco parentis to the child’.128 To resolve this ‘confusion’, some judges used parenting orders which touch on a child’s legal kinship identity (such as naming practices, or who spends Fathers’ Day with the child) to serve a normalising function – re‐writing the child’s understanding of their family to match the biogenetic relationships, thereby enforcing a norm of the genetically‐related heteronuclear family. For these judges, aligning a child’s name and naming practices with their biogenetic parentage is a means to reduce ‘confusion’. Naming practices could either destabilise or re‐settle the delicate hierarchy of genetic knowledge over relational knowledge.129 For example, in Re C & D, the mother and her new partner (the child’s genetic father) appealed against orders preventing them from changing the child’s surname to that of the genetic father.130 A persuasive factor in the Full Court’s decision to allow the name change was the information that the mother and biofather were now living together and planning to marry – closing the circle on their biogenetic nuclear family.131 Concessions to align naming with biogenetic parentage have been noted favourably by judges in some cases dealing with non‐legal parents’ claims for parenting orders in other contexts. In O & M, a lesbian co‐mother was praised when she undertook not to ‘refer to the child as her daughter’, as were the de facto foster parent in Vargas & Mann when they affirmed the biological mother’s role as a parent.132 In a number of
127 See chapter 5 for further discussion of law’s use of social science research regarding genealogical bewilderment and children’s wellbeing. 128 Madsen & Kaplan [2012] FMCAfam 251 (22 March 2012) [32]. 129 See further discussion of Brigitte Jordan’s notion of ‘authoritative knowledge’ in Chapter Four. Brigitte Jordan, 'Authoritative Knowledge and Its Construction' in Robbie E Davis‐Floyd and Carolyn F Sargent (eds), Childbirth and Authoritative Knowledge: Cross Cultural Perspectives (University of California Press, 1997) 55, 56. 130 Re C & D [1998] FamCA 98 (1 July 1998). 131 Ibid. 132 O & M [2006] FMCAfam 11 [2006]) [10]; Vargas and Anor v Mann and Anor [2009] FMCAfam 1383 [49].
235 Chapter Five – Parenting Orders these cases, we see not only ‘legal truth is being increasingly forced into line with (what John Eekelaar 2006 has called) physical truth’, but sometimes also the social truth of children’s relationships being re‐structured to better align with ‘physical [genetic] truth’ and to reduce ‘confusion’.133 It is unclear here whether children themselves are confused or whether adults view a child calling a man ‘Daddy’ who is not a genetic father as something innately out of order and confused. The decision of non‐biogenetic parents to seek to continue a parent‐child relationship has sometimes been viewed by judges through a moral lens – assessing their motives as commendable or otherwise, but never natural. For example, in Re C & D, Nicholson CJ and Baker J remarked:
We also sympathise with the position of the husband in his desire to retain the role of a father figure... It must be extremely difficult for a person in the position of the husband to suddenly be called upon to abandon the role of the father of a child upon the discovery that he has been the victim of such a long running deception. Indeed we think that the husband is also to be commended for not abandoning the child upon discovery of what had occurred and we think that this supports the view that he is a suitable person to have continued contact with the child.134
Despite those commendations, the orders and remarks made by Nicholson CJ and Baker J indicated that the husband must cede the title of ‘father’ to the genetic father. 135 In other judgments, the desire to continue a parenting relationship with a non‐ biogenetic child, and assertion of status as a parent (whether via their statements, the child’s name or naming practices such as ‘Dad’ and ‘Mum’) was taken to signal ‘entitlement’ – making the applicant less rather than more suitable as a carer for the child. This was apparent in Verner & Vine, a dispute between lesbian parents who had planned and started raising the child together. 136 Lawrie J took objection to the co‐ mother (who was not a legal parent as the matter was decided before the 2008 reforms to s 60H) seeking parenting time which ‘might be appropriate in the case of a parent,
133 Carol Smart, 'Family Secrets: Law and Understandings of Openness in Everyday Relationships' (2009) 38 Journal of Social Policy 551, 553. 134 Re C & D [1998] FamCA 98 (1 July 1998) [8.4.13]. 135 Ibid [8.4.14]. 136 Verner & Vine [2005] FamCA 763.
236 Chapter Five – Parenting Orders but would be extraordinary for a non‐parent’.137 The orders sought, and the co‐mother’s tendency to refer to the child as ‘my daughter’ or ‘our daughter’, led Lawrie J to conclude that ‘the application is less child‐focussed than concerned with an assertion by the applicant of a parental ‘entitlement’’. 138 Similarly, in Clarkson & Zammit, Phipps J expressed concerns about Mr Zammit’s insistence on his role as the child’s father, and his refusal to consent to the removal of his name from the birth certificate. Phipps J took these as indicators of Zammit’s ‘equivocal attitude to the issue of whether or not he is the father of the child’, and saw this attitude, in turn, as casting doubt on Zammit’s motivations and commitment to the child:
If he loves the child as he says, he would want the best for the child which includes a birth certificate without information that is wrong. His attitude supports [the family report writer]’s conclusions that he cannot separate his relationship with the mother from his relationship with the child, that he has difficulty reconciling himself to the fact that that is not the child’s father and that he still wants to control the mother and the child.139
2 Misattributed Fathers ‘passing’ as genetic fathers
Another factor which has apparently affected whether misattributed fathers are successful in obtaining parenting orders is the extent to which they fit the heteronuclear family model in some respect – for example, being the ‘only father the child has known’ or a biogenetic father to the child’s sibling.140 A good example of this effect is Mulvany & Lane, where a misattributed father was successful in obtaining parenting orders preventing the mother from re‐locating to her home country. Unlike in Re C & D or in C & G & M, in Mulvany the child’s biogenetic father was not identified and not part of the
137 Ibid [16]. 138 Ibid [16]. 139 Clarkson & Zammit [2014] FCCA 1099 (30 May 2014) [40]. 140 Brown FM used the term ‘only father she has ever known’ or variations on it six times in the judgment: K‐A & K‐P [2005] FMCAfam 62 (7 March 2005) [4], [27], [122], [133], [140], [182] (Brown FM). Re A [2008] EWCA Civ 867 [5], [65], [92].
237 Chapter Five – Parenting Orders proceedings.141 Perhaps as a result, there was no discussion of any ‘confusion’ for the child, or of Mr Mulvany having to take a ‘less prominent position’ in regard to the child. At the time of the trial, the six‐year old child was living one week per fortnight with each parent, and Mr Mulvany proposed that this arrangement continue.142 Mr Mulvany therefore fitted the heteronuclear family model in all but genetic relatedness. Status as a legal father to at least one of the children in a sibling group also seemed to strengthen the care‐based claims of misattributed fathers to parenting orders for non‐genetic children.143 In Henry & Washburn, the family reporter referred to the applicant as ‘the only father [the child Y] has known since birth’. 144 Brown FM concluded that the loss of the child’s relationship with the misattributed father would ‘Not only would this be a loss in itself for [Y], who does not know any other father, but it might also affect his important sibling relationship with [X]’.145
3 Relying on a lack of biogenetic parentage to exclude a ‘controlling’ or problematic parent
It also appears that understandings of ‘true’ parentage being genetic parentage has sometimes made it possible for judges to exclude a controlling non‐biogenetic parent and to give the mother a level of discretion about the amount of contact. For example, in Clarkson & Zammit, the father listed on the birth certificate, Zammit, had only commenced his relationship with the mother well after she became pregnant at the age of 16.146 Eleven years her senior, Zammit was keen to parent the child, however, and the mother moved in with him late in the pregnancy, and listed him as the father
141 Mulvany & Lane [2008] FMCAfam 473. 142 Mulvany & Lane [2008] FMCAfam 473 [8]. 143 See, eg, of the judgments analysed here: No bio‐sibling, no parenting orders: Madsen & Kaplan, Clarkson & Zammit. No bio‐sibling, minimal parenting orders: K‐A & K‐P. No bio‐sibling, won parenting orders anyway: Re C & D, Mulvany & Lane. Bio‐sibling and won parenting orders: Henry & Washburn, C & G & M. In Hadley & Pock, paternity was only disputed for one of three children, and Roberts FM declined the mother’s application for paternity testing, ordering that the father hold parental responsibility for all three children. 144 Henry & Washburn [2010] FMCAfam 165 (3 March 2010) [106]. 145 Mulvany & Lane [2009] FamCAFC 76 (12 May 2009); Henry & Washburn [2010] FMCAfam 165 (3 March 2010) [197], [119]. 146 Clarkson & Zammit [2014] FCCA 1099 (30 May 2014).
238 Chapter Five – Parenting Orders because she thought that ‘would be a better option than having no father for the child’.147 Some months after the birth, the mother resumed heavy marijuana use, making her incapable of caring for the child for significant periods of time. The parties separated, and Zammit had regular time with the child, and after speaking to the child protection authority about his concerns about Clarkson’s marijuana use, decided not to return the child to her. He subsequently obtained interim orders that the child (about twelve months old at this stage) live with him and spend supervised time with the mother, and if she was able to return three consecutive clean drug screens, building up to two nights per week at the maternal grandmother’s house. The mother was required to undertake ongoing drug testing. By the time the matter came to final hearing over nine months later, it was clear that the mother had abruptly ended her drug habit when faced with losing her child. She was successful in obtaining sole parental responsibility and orders that the child live with her and that any further contact between the child and Zammit be at her discretion. Justice Phipps expressed concern that leaving Zammit on the birth certificate could ‘have detrimental consequences for the child’, observing that ‘[f]amily history is important in medical diagnosis and treatment’ and arguing that ‘the importance for the child of an accurate as possible record of his birth is obvious’.148 Despite Zammit’s history as a carer of the child since birth and as his primary carer nearly all of his second year, Phipps J accepted the family report writer’s evidence that ‘the mother, as the biological parent and because of her relationship with the child, needs to be the principal carer’. 149 The family report writer had initially formed a view that the child should have an ongoing involvement with Zammit, but had changed her mind because she felt he had exhibited controlling behaviours towards the mother and
147 Ibid [12]. 148 Clarkson & Zammit [2014] FCCA 1099 (30 May 2014) [38]. 149 Clarkson & Zammit [2014] FCCA 1099 (30 May 2014) [42].
239 Chapter Five – Parenting Orders seemed to have difficulty accepting that the child was not his (genetic) son and that the relationship with the mother was over.150 While Phipps J did not use the same language of ‘parental autonomy’ which Brewster FM had applied in Madsen & Kaplan, he agreed with the Independent Children’s Lawyer that the mother should be ‘free to parent the child without interference from the respondent’.151 Like the trial judge in Mulvany & Lane, Phipps J felt that the orders sought by Zammit would compromise the ‘benefit to the child of a meaningful relationship with the mother’, and therefore ordered that the mother have sole parental responsibility, and that the child spend time with Zammit only as agreed with the mother.152 Phipps J acknowledged that the child would miss Zammit, but preferred this arrangement as it left ‘open the possibility of the child having a relationship with the respondent in circumstances where the respondent cannot attempt to exercise control’.153 Empowering the mother to limit the role of a controlling ex‐partner in her and the child’s life is likely to be in the best interests of the child and shows some sensitivity to the relational dynamics at play – at least between the adults. Yet it still relies on the lack of biogenetic connection (rather than the controlling behaviour itself) to exclude a ‘controlling’ parent and to identify those relationships which are most or least significant to the child’s wellbeing. While there is now strong judicial acceptance of the view in Rice & Miller that parents will not automatically be preferred over a non‐parent – particularly where a parent is in jail, dysfunctional or dead – a hierarchy nonetheless seems to persist.154 Within this hierarchy, biogenetic relationships are treated as the relationships worth establishing, consolidating and maintaining. It is difficult to imagine a legal father being excluded from a child’s life in the same way as Mr Zammit. Where relationships with a legal (and presumed biogenetic) father carry risk for the child, those risks have to reach
150 Ibid [45]. 151 Ibid [42]. 152 Ibid [42]. 153 Ibid [47]. 154 Rice & Miller (1993) 16 FamLR 970.
240 Chapter Five – Parenting Orders a very serious level before a court will rule that there is no benefit to the child in continuing the relationship.155 Indeed, those cases where legal fathers have been excluded from time with children tend to feature fathers who have had zero history of care or even contact with the child, as well as a history of violence or intractable conflict with the mother.156
XII CONCLUSION
This chapter has argued that how legal parentage is allocated and adjudicated retains a very significant influence over parenting order determinations and hence on the living, decision‐making and parenting arrangements which shape children’s lives. Where current parentage laws fail to recognise children’s relational context, parenting orders can moderate, but not resolve that failure. Parenting orders offer significant potential to work around the rigidity of legal parentage and to unbundle the care and decision‐making aspects of default parental responsibility from legal parentage. They cannot, however, prevent or remedy the disruption which may be caused to a child’s legal identity and legal kinship relationships by a change in legal parentage. In addition, they (explicitly since 2012) do not require children’s best interests to be paramount in decisions around genetic testing and legal parentage. The effectiveness of parenting orders in giving children stability regarding their parenting relationships also rely on the willingness and ability of the disputed paternity
155 Some of this is likely to depend on the information and opinions of family report writers, whom recent research has found ‘do not always understand family violence at the level required’: Rachael Field et al, 'Family Reports and Family Violence in Australian Family Law Proceedings: What Do We Know?' (2016) 25 Journal of Judicial Administration 212, 236. 156 See, eg, the genetic father in Albert & Edell, who had assaulted the mother while she was pregnant and in hospital, and was likely to be deported in the near future (Albert & Edell [2010] FMCAfam 1487, or the genetic father in Morgan & Carter where the mother alleged that conception had occurred via a sexual assault and therefore she and her mother (the child’s primary carer) were intractably opposed to any contact between the child (Morgan & Carter [2016] FCCA 289) See also Esfara & Wollens [2016] FamCA 2 (13 January 2016), where the father suffered from a mental illness resulting in violent behaviour, and had previously stabbed his brother while he was sleeping, and had physically and sexually assaulted the mother. There was a similar combination of violence and untreated mental illness from the father in Idressa, where it was held that there be no contact with the father: Idressa & Idressa [2015] FamCA 112 (27 February 2015).
241 Chapter Five – Parenting Orders parent to pursue parenting orders. While this is not a quantitative study, there is a stark contrast between the frequent cases in which misattributed fathers shrug off legal parentage in order to end their child support liability or claim a refund, and the relatively rare cases where misattributed fathers seek parenting orders to enable them to continue their role as a social parent. The misattributed paternity child support cases also reveal a number of instances in which misattributed fathers had obtained parenting orders before DNA testing took place. For example, in B & M, the misattributed father had an ‘ongoing personal relationship’ with the children and there was no indication that contact orders would be reviewed, despite the social father seeking a declaration that he was not liable for child support and a refund of past child support payments.157 In the cases, where misattributed fathers and the child(ren) they were parenting have faced a disclosure of non‐paternity, and any consequent erasure of the legal parent‐child relationship, few social parenting relationships survived. Often contact broke down after disclosure.158 Once a finding of genetic non‐paternity has been made, stripping the misattributed father of legal parentage, many misattributed fathers struggled to continue a parent‐child relationship with the child. There will always be some parents who drop out of a child’s life post separation. Even where a presumed genetic father’s role in a child’s life is affirmed as legal parentage, there are still a proportion (25‐30%) who have no or little role in their child’s lives post‐separation, a proportion which has stayed relatively stable since 1997.159 Where paternity is not disputed, and a parent steps out of a child’s life, the court cannot force them to take part in the child’s care, but the child can at least preserve their legal kinship identity as a member of that person’s family, and can, via the child support system, receive financial
157 B & M [2003] FMCAfam 113 [48] (Bryant CFM); DRP v AJL [2004] FMCAfam 440 (20 September 2004) [12] and [71]. 158 See, eg, G & N [2002] FMCAfam 281 (Bryant CFM); DRP v AJL [2004] FMCAfam 440 (20 September 2004) [12] and [71]. 159 As reported by resident parents, the proportion of children under 18 years who see their non‐resident parent less than once a year or never was 30% in 1997, 26% in 2003 and 30% in 2006–2007, 24% in 2009‐ 10, 26% in 2012‐13. Australian Bureau of Statistics, Family Characteristics and Transitions, Australia, 2012‐ 13, Cat No 4442.0,
242 Chapter Five – Parenting Orders support from that parent. That is not the case for disputed paternity children, even if they have regarded and relied on the misattributed father as a parent since birth. The potential of parenting orders to moderate the rigidity of legal parentage is limited, however, to situations where the court feels that its jurisdiction is activated by the child’s best interests and justify the court overriding the automatic parental responsibility and authority held by legal parents in order to make parenting orders in favour of a non‐legal parent. This may be because the legal parent is unable to provide adequate care (a ‘push’ factor indicating that the child’s best interests lie away from the legal parent). Alternatively, it may be because the child has a strong social parenting bond with the nonlegal parent such that breaking that bond would be detrimental to the child (a ‘pull’ factor indicating that the child’s best interests are served by continuing the relationship with the non‐legal parent). The parenting order cases also reveal a tension between two distinct understandings of children’s best interests. The first is a more generic idea of best interests which presumes that, unless a parent poses a risk to a child, children’s interests are best served within family structures which conform to the biotruth norm – ie a mother and father who are presumed to be the child’s genetic progenitors (even if, due to adoption or ART, that is not exactly the case). The second prioritises the best interests of the particular child in question given the existing relationships which they rely on and their specific needs. At present, s 60CC(5) of the best interests pathway prescribed by the Family Law Act reflects the first, generic understanding of best interests. It implies that it is almost always in a child’s best interests to have a meaningful relationship with ‘both parents’. A more child‐centred idea of best interests, on the other hand, might start from children’s own knowledge of their family and who they regard and rely on as parents. It was often misattributed fathers who could somehow sublimate themselves into the position of ‘the father’ (or at least, ‘the only father the child has ever known’) and thereby approximate the biotruth norm who were most successful in obtaining parenting orders. These cases prompt important questions about whether parenting orders should be used to ‘normalise’ children’s family relationships. If so, should such norms emphasise particular family structures (ie the heteronuclear norm imagined by the priority placed on ‘meaningful relationships with both parents’ in the current best
243 Chapter Five – Parenting Orders interests pathway) or parenting behaviours and the ‘quality of parenting’ as suggested by the Full Court in Yamada?160 While it is possible for the care aspect of a parent‐child relationship between a misattributed father and child to be preserved via parenting orders, the emphasis on parents within Part VII may mean that that message is not filtering through to families, lawyers or even lower courts. Many families negotiating ‘in the shadow of the law’ might reasonably conclude from looking at s 60CC that parents will be prioritised in a dispute with a non‐legal parent.161 For example, in Vaughan v Vaughan the stepfather only sought parenting orders in relation to his stepson (as well as his biological child), after the judge made him aware it was possible.162 It is impossible to know how the misattributed fathers involved in the child support refund judgments may have reacted to a DNA result of non‐paternity had it been possible to retain their legal parent‐child relationship. Certainly the misattributed fathers interviewed in Emily Kwok’s 2013 study expressed grief where they lost a relationship with a child, and frustration with the legal process which they perceived as obstructing that relationship.163 If parenting orders cannot remedy the problems created by the current bundled model of legal parentage, then where to next? Chapter Six considers a key element omitted from the current model of legal parentage – the child’s perspective – and argues that a child‐centred model of legal parentage would need to consider children’s understandings of their own families and kinship identities. It considers three bodies of evidence on why it may be important to hear from children when determining their legal parentage – drawing again on the paternity dispute judgments, as well as the research literature engaging with adopted and donor‐conceived people, and with children in family law disputes more generally. Children’s distinct needs around origins information, parenting arrangements, legal kinship identity and economic support may also require greater unbundling of the four functions currently combined within legal parentage.
160 Yamada & Cain [2013] FamCAFC 64 (Thackray, Murphy & Macmillan JJ). 161 Family Law Council, (2013) Report on Parentage and the Family Law Act, 31. 162 Vaughan & Vaughan & Scott [2010] FMCAfam 863 [4] (Lapthorn FM). 163 Emily Kwok, Resolving Misattributed Paternity Disputes in the Context of Family Law and the Child's Best Interest (University of Sydney, 2012) 222.
244 Chapter Six – Children’s Perspectives
CHAPTER SIX – Wise Children: Hearing Children’s Perspectives on their legal parentage
HEDVIG: Dad! Dad, it’s okay, Christian told me.
OLIVER (Moving away): No, it’s not.
HEDVIG: Can’t you pretend that you didn’t know? I’m your daughter. You brought me up.
OLIVER (getting in car): No, you’re his daughter.
HEDVIG (crying): I don’t want to be anyone else’s daughter.
OLIVER: Well, you don’t have a choice.
HEDVIG (crying): Dad! I really need you!
OLIVER (driving): I can’t look at you. I can’t fucking look at you.1
In Simon Stone’s 2015 film, The Daughter, we hear a dramatization of something that is rarely heard in legal parentage cases – the voice of the child whose parentage is at stake. This chapter argues that the bundled structure of legal parentage and the biotruth rhetoric underpinning it allow little space for hearing the child’s perspective or exploring the child’s relational reality, and that this failure harms to children in practical ways by denying them the dignity of being heard on the topic of their legal kinship identity. Like some genetic fathers, some misattributed fathers display controlling and entitled attitudes towards their children, sometimes in combination with family violence towards the child’s other parent. It has been simpler for judges to exclude misattributed fathers (as opposed to genetic fathers) from their children’s lives because they did not ‘beget’ the child and therefore lack legal parentage. The focus of any reform must not, therefore, be on equalising status between genetic and misattributed fathers, but on
1 The Daughter (Directed by Simon Stone, Screen NSW and Wildflower Films, 2015).
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Chapter Six – Children’s Perspectives hearing and giving some recognition to children’s reliance on adults as parents and on their best interests. As argued in Chapter Three, the bundled structure of legal parentage masks the distinct functions carried out by legal parentage. When examined further, these functions distil out into recording the child’s (presumed or deemed) origins information on the birth certificate, defining their legal kinship identity, ensuring appropriate care for the child (via default parental responsibility for parents listed on the birth certificate) and ensuring economic support for the child (via child support liability).2 Of these four functions, default parental responsibility (and therefore, ability to decide where and with whom the child lives and spends time) can be ‘unlocked’ from the other three because the Family Law Act empowers a court, if it decides that would be in the child’s best interests, to make parenting orders or parental responsibility orders in favour of a non‐legal parent. This includes, as discussed in Chapter Five, making parenting orders in favour of a misattributed father where the court finds it would be in the child’s best interests. Children’s perspectives are already part of the process to assess whether any given parenting order would be in the best interests of the child. Australian family law therefore has well‐developed mechanisms for hearing and assessing children’s perspectives on parenting orders. The scope of decisions on which the family courts seek to hear children’s perspectives has, however, been limited to parenting orders – ie decisions regarding which parent the child lives and spends time with and who holds parental responsibility (decision‐making power regarding the child). The remaining three functions (information re origins, legal kinship identity and economic support obligations), however, remain locked together. In the exceptions for donor‐conceived or adopted children, the origins information function is (if/when the child is given access)
2 As acknowledged in Chapter Three, registers of donor information and original birth certificates in the case of adopted people provide accurate origins information for donor‐conceived and adopted people – but until the person is made aware that they are donor conceived or adopted, their birth certificate identifying their legal parents purports to record their origins information.
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Chapter Six – Children’s Perspectives supplemented by specialist registers of biogenetic parentage, though the person’s birth certificate will not reflect this origins information.3 For other children, however, a court finding that someone is not a genetic father can unravel the child’s legal parentage in terms of legal kinship identity and economic responsibility, without any opportunity to consider the child’s best interests or their perspective in terms of who they regard and rely on as a parent. This chapter considers the effect of this structure on the court’s ability to hear children’s and young people’s perspectives on their legal parentage and on their access to origins information in the disputed paternity cases. It draws on research with donor conceived and adopted people, and on children’s participation in parenting order decisions, to consider the policy reasons and existing mechanisms and obstacles for hearing children’s perspectives on origins information and legal kinship functions within legal parentage. When it comes to economic responsibility for a child, however, it argues that this is a concern more properly left to adults. Part I demonstrates why hearing children’s perspectives in determining legal parentage is important, reviewing evidence from the disputed paternity cases, research with adopted and donor‐conceived people, and research more generally on children’s participation in family law decisions. The evidence from adopted and donor‐conceived people indicates that many want access to information about their origins, as well as a say in any proposed changes to their legal kinship identity or decisions about how their legal kinship identity and origins information is recorded (for example, via integrated birth certificates). It is likely that disputed paternity children feel the same way. Similarly, research on children’s participation in parenting order decision‐making shows that most children want the option of being heard, many are capable of contributing meaningfully, and their participation can result in better, more sustainable decisions which align with international law obligations regarding childrens’ rights. Part I therefore
3 For example, in Victoria, the Central and Voluntary Registers are maintained by the Victorian Assisted Reproductive Treatment Authority (‘VARTA’). Assisted Reproductive Treatment Act 2008 (Vic), Part Six. In Victoria, once donor‐conceived people turn 18, if they apply for a copy of their birth certificate, it will include an additional page with an addendum indicating that further information is held on the birth record. Similarly, the Adoption Act 1984 has created the Adoption Information Register and enables adopted persons, their adoptive and relinquishing parents to apply for access to information on the Register about the adopted person’s birth family: Adoption Act 1984 (Vic) [1984]) s 103.
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Chapter Six – Children’s Perspectives argues that there are strong reasons for hearing from children who are capable of forming and expressing a view on whether a change should be made to their legal parentage, not just in adoption situations, but also where new information as to their genetic origins has emerged, or where legal parentage is uncertain in other contexts, such as customary adoption. Part II analyses the existing mechanisms (such as Family Reports and Independent Children’s Lawyers) for children’s participation used in parenting order or parenting plan disputes along with some of the critiques of these mechanisms.4 It contends that the understandings of children’s participation as relational and contextual which are proving helpful in parenting order matters would apply equally to determinations of legal parentage, particularly in hearing children’s perspectives on who they regard and rely on as parents, and how they understand their legal kinship identity. These mechanisms already work well to inform the court of children’s views on parenting order matters. Hence expanding the scope to cover the child’s legal kinship identity and decisions around origins information is unlikely to require additional resources or major changes to existing services. Part III identifies three obstacles preventing these existing mechanisms from being used to hear children’s perspectives in legal parentage disputes. First, the bundled structure of legal parentage binds together different functions for which different levels of participation by the child are appropriate (for example, a child’s perspective may be crucial when deciding on potential changes to their legal kinship identity, but less appropriate when assessing liability for child support or evidence regarding genetic origins).5 Second, biotruth rhetoric frames legal parentage as a natural truth, decided at the moment of conception or adoption, making children’s perspectives irrelevant. Third, the emphasis on conception or adoption means that it is adults who constitute a child’s legal parentage, and gives those adults parental authority which limits the family courts’
4 A Family Report is a report written by a family report writer (usually a psychologist or social worker) and generally based on interviews with each of the adults and children, and /or observations of interactions between the child and the adults. 5 In addition to provision of child support via the Child Support (Assessment) Act 1989 (Cth), the Family Courts are able to make parenting orders for maintenance of a child under s 64B(2)(f), but this power is limited by ss 66C and 66D to maintenance orders against parents or step‐parents: Family Law Act 1975 (Cth).
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Chapter Six – Children’s Perspectives jurisdiction to otherwise decide legal parentage or to hear children’s perspectives. These features of legal parentage mean that there is no room within the common law definition of ‘parent’ for taking into account whom children themselves regard and rely on as their parents. Finally, Part IV analyses a number of options for law reform which could address these obstacles and create space for a more child‐centred model of legal parentage. It considers approaches taken (or being considered) in jurisdictions such as Canada and the Netherlands. It argues that the mechanisms used to hear children’s perspectives on parenting order determinations should be extended to determinations of legal parentage – particularly before any change is made to a child’s legal kinship identity. To hear children on questions of their legal kinship identity and access to their origins information first requires, however, an unbundling of legal parentage and a challenging of the biotruth rhetoric that legal parentage is a simple question of scientific fact.
XIII WHY HEAR CHILDREN’S PERSPECTIVES ON THEIR LEGAL PARENTAGE?
This section argues that hearing children’s perspectives on their legal parentage is vital if family law outcomes are to foster children’s wellbeing and respect for their legal personhood. It does so by drawing on three bodies of evidence: the disputed paternity cases, research with adopted and donor‐conceived people, and research more generally on children’s participation in family law decisions. Taken together, this evidence suggests that making changes to a child’s legal parentage without allowing their input can cause harm to children. Across Australian and international databases, there appear to be no published research studies which focus on the perspectives of misattributed paternity children, though a number address the experiences of late‐discovery adoptees and donor‐ conceived people.6 Given the dearth of direct accounts of children’s perspectives in
6 Helen Riley, Identity and Genetic Origins: An Ethical Exploration of the Late Discovery of Adoptive and Donor ‐ insemination Offspring Status (PhD Thesis, Queensland University of Technology, 2012); Vasanti Jadva et al, 'The experiences of adolescents and adults conceived by sperm donation: comparisons by age of disclosure and family type' (2009) 24 Human Reproduction 1909; Susan Golombok et al, 'Children Conceived by Gamete Donation: Psychological Adjustment and Mother‐Child Relationships at Age 7' (2011) 25 Journal of Family Psychology 230; Susan Golombok et al, 'Children born through reproductive donation: a longitudinal study of psychological adjustment' (2013) 54 Journal of Child Psychology and
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Chapter Six – Children’s Perspectives parentage disputes, this chapter borrows the historical technique of ‘reading across the grain’ of texts in order to hear the voices of the less powerful, and to ‘measure silences’.7 In the colonial archive, this is usually the voices of first nations people. In family law judgments (at least for determinations of legal parentage), it is the voices of children. Because there are so few occasions where children’s voices are even referred to in parentage dispute judgments, I have also drawn on children’s perspectives in other contexts where tensions between genetic, legal and social parentage arise – such as where children have been donor conceived, or are being raised within same‐sex parented families. There is, however, an extensive literature arising from research with donor‐ conceived and adopted children more generally, and with children experiencing parental separation and/or family court proceedings between their parents.8 The disputed paternity children featured in the case study judgments often share experiences with both late‐discovery adopted or donor‐conceived children, and with children involved in family court proceedings. They face the disclosure that a social parent is not a genetic parent, as well as litigation between the adults in their lives. This chapter therefore gleans insights about how children understand their genetic, legal and social parentage and why hearing children’s perspectives is important from the research
Psychiatry 653; Sophie Zadeh et al, 'The perspectives of adolescents conceived using surrogacy, egg or sperm donation' (2018) Human Reproduction 1; Lucy Blake et al, ‘“I Was Quite Amazed”: Donor Conception and Parent‐Child Relationships from the Child's Perspective' (2014) 28 Children & Society 425; Polly Casey et al, 'Families Created by Donor Insemination: Father–Child Relationships at Age 7' (2013) 75 Journal of Marriage and Family 858. 7 Kristine Alexander, 'Can the Girl Guide Speak? The Perils and Pleasures of Looking for Children’s Voices in Archival Research' (2012) 4 Jeunesse: Young People, Texts, Cultures 132, 142; Gayatri Chakravorty Spivak, 'Can the Subaltern Speak? (Revised edition)' in Rosalind C Morris (ed), Can the Subaltern Speak: Reflections on the History of an Idea. (Columbia UP, 2010) 21‐78, 48. 8 Dale Bagshaw, 'Reshaping Responses to Children When Parents are Separating: Hearing Children's Voices in the Transition' (2007) 60 Australian Social Work 450; Patrick Parkinson and Judy Cashmore, The Voice of a Child in Family Law Disputes (Oxford University, 2008); Patrick Parkinson, Judy Cashmore and Judi Single, 'Parents' and Children's Views on Talking to Judges in Parenting Disputes in Australia' (2007) 21 International Journal of Law, Policy & Family, 84; Nicholas Bala and Patricia Herbert, 'Views, Perspectives and Experiences of Children in Family Law Cases' (Research Paper, Queen's University Faculty of Law, 2016); Rachel Birnbaum and Michael Saini, 'A Qualitative Synthesis of Children’s Participation in Custody Disputes' (2012) 22 Research on Social Work Practice 400.
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Chapter Six – Children’s Perspectives on donor‐conceived and adopted people and children experiencing family court litigation. Yet even within the research reporting on the perspectives of donor‐conceived children and children experiencing family law litigation, there is little data directly on the question of who children regard as their parents and why. In the 19 years since Allison James noted the paucity of research on how children understand and define who they regard as their parents,9 there has only been a trickle of publications.10 Instead, the research on donor conceived children’s perspectives centres on their preferences and experiences regarding disclosure of their conception, while research with children in family law disputes mostly concerns how best to consult children.11 Finding evidence of children’s views about their own legal parentage in situations of disputed parentage is difficult because, as this thesis argues, the biotruth rhetoric surrounding legal parentage has treated it as a simple truth revealed by genetic parentage testing, to the exclusion of children’s voices and social and relational understandings of parentage.
A Evidence from the disputed paternity cases
This section examines children’s perspectives within the disputed parentage judgments (in the rare instances where they appear) as well as the gaps where those perspectives are missing. It also considers how judges and parties have sought to speculate or report on a child’s perspective. The analysis is organised thematically, addressing the lack of space to hear children’s perspectives; children’s reported distress
9 Allison James, 'Parents: A Children's Perspective' in Andrew Bainham, Shelley Day Sclater and Martin Richards (eds), What is a Parent?: A Socio‐legal Analysis (Hart, 1999) 181, 181. 10 Amy Roe et al, 'Young children’s representations of their families: A longitudinal follow‐up study of family drawings by children living in different family settings' (2006) 30 International Journal of Behavioral Development 529; Liz Trinder, 'What might children mean by a 'meaningful relationship'?' (2009) 15 Journal of Family Studies 20; Lucy Blake et al, 'Families created by assisted reproduction: Children's Perspectives' in Susanna Graham et al (eds), Relatedness in Assisted Reproduction (Cambridge University Press, 2014) 251 (‘Families Created by ART’). 11 See for example, Nicholas Bala et al, 'Children's Voices in Family Court: Guidelines for Judges Meeting Children' (2013) 47 Family Law Quarterly 379; Rosemary Hunter, 'Close encounters of a judicial kind: 'hearing' children's 'voices' in family law proceedings' (2007) 19 Child and Family Law Quarterly 283; Parkinson and Cashmore, above n 7; Richard Chisholm, 'Children's Participation in Family Court Litigation' (1999) 13 Australian Journal of Family Law 1.
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Chapter Six – Children’s Perspectives surrounding parentage disputes; the tendency for children’s perspectives to be labelled as ‘confused’ where they diverge from the biogenetic family; treatment of social definitions of ‘parent’ as a process exclusively based on adult assumptions and intentions; and the ways in which children’s legal parentage is often instrumentalised for other agendas (particularly child support), therefore excluding their perspectives.
1 No space to hear children’s perspectives on legal parentage
Back in 2002, Carol Smart asked whether the legal process allowed ‘space for children to speak if they wish to, when they wish to’?12 In previous chapters, I have argued that there is no such space when it comes to legal parentage. This is particularly true since the 2011 amendments to the Family Law Act, which excluded issues of legal parentage matters from the definition of ‘parenting order’ and therefore from the space in which the best interests of the child are paramount, and in which children can be consulted via existing mechanisms described in Part II of this chapter.13 Equally, there is no requirement in processes under the Child Support (Assessment) Act 1989 (Cth) for the best interests of the child to be paramount and therefore no requirement that the court consider the views of the child. This prevents courts from considering a child’s perspective or best interests when their legal parentage is challenged via s 107 of the Child Support (Assessment) Act.14 In the 75 Australian disputed parentage judgments considered in detail in this thesis, none took children’s perspectives of their parent‐child relationships into account in determining the child’s legal parentage. In the child support cases, courts had no first‐ hand evidence of the child’s views, though in a small number of cases mothers discussed the child’s reaction to the parentage dispute or sought to bring evidence reporting on the child’s perspective. Even where a best interests inquiry was undertaken, the misattributed paternity cases studied provide a relatively limited picture of how judges draw on children’s views
12 Carol Smart, 'From children's shoes to children's voices' (2002) 40 Family Court Review 307, 307. 13 Family Law Act 1975 (Cth) s 60CC(3). 14 Child Support (Assessment) Act 1989 (Cth). Section 107 enables a person to apply for a declaration that they should not be assessed for child support regarding the costs of a child because they are not a parent of that child.
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Chapter Six – Children’s Perspectives regarding their legal kinship identity. This is because, in the six cases studies where misattributed fathers sought parenting orders, all the children were under seven years old.15 The age of the child is the main factor affecting the weight to be giving to a child’s views under s 60CC(3)(a) – the provision setting out the factors the court must consider in assessing the best interests of the child before making any parenting order (discussed in detail in Chapter Five). In the terminology used to describe the relationships, judges tended to follow the lead of the misattributed father rather than the child in question in characterising the relationship as parental or not. Where the misattributed father was seeking a role in the child’s life, judges were more likely to refer to him as ‘the father’ (often with a disclaimer about not being a genetic father).16 In contrast, where the misattributed father sought to escape parental obligations, judges were more likely to use more neutral terms such as ‘the husband’, ‘the applicant’ or his name – even if the child(ren) clearly regarded him as their father.17 Overall, in the judgments studied, children’s perspectives were starkly absent from determinations about their own legal parentage – determinations which go to the heart of children’s legal identity and legal kinship relationships. Without any input into these questions of legal parentage, these children are often positioned as ‘disempowered victims of the circumstances’ of their genetic make‐up and of their parents’ actions.18 In many of these cases, the child’s lived experience of family life prior
15 C & G & M [2001] FMCAfam 83 (Ryan FM, 25 July 2001); Re C & D [1998] FamCA 98 (1 July 1998); Clarkson & Zammit [2014] FCCA 1099 (Phipps J, 30 May 2014); Madsen & Kaplan [2012] FMCAfam 251 (Brewster FM, 22 March 2012); K‐A & K‐P [2005] FMCAfam 62 (7 March 2005); Mulvany & Lane [2009] FamCAFC 76 (Finn, May and Thackray JJ, 12 May 2009).] 16 Mulvany & Lane [2009] FamCAFC 76 (Finn, May and Thackray JJ, 12 May 2009); Hadley & Pock [2011] FMCAfam 117 (Roberts FM). Note – judges also more likely to use the term ‘father’ where the misattributed father was also a genetic father of other children born of the same mother. Eg: Sayer & Radcliffe [2012] FamCAFC 209. 17 Levine & Levine [2011] FMCAfam 821; Henning & Henning [2012] FMCAfam 119; Ames & Ames [2009] FamCA 825 (Dawe J); Magill v Magill [2006] HCA 51. 18 Stephanie Holt, 'The voice of the child in family law: A discussion paper' (2016) 68 Children and Youth Services Review 139, 142, citing E Buss, ‘”You’re my what?” The problem of children’s misperceptions of their lawyers’ roles’ (1996) 64 Fordham Law Review, 1699, 1704.
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Chapter Six – Children’s Perspectives to their paternity being disputed was treated as a factual error to be corrected with the admission of new evidence of their genetic origins. There is a sharp contrast here in the weight given to older children’s views regarding parenting orders, as opposed to their views regarding their legal parentage. In parenting orders cases, judges often recognise that it is futile to make parenting orders which are at odds with the wishes of a child twelve years or over because the child is likely to ‘vote with their feet’ and can independently move to the parent with whom they wish to live.19 Yet in parentage disputes, even where children were well over the age where they would have a significant (and often deciding) say in which parent they lived with, they were given no voice whatsoever on whether their legal parentage should reflect the parent‐child relationships on which they had relied for most of their lives.20 Where children’s views have been heard within disputed paternity cases as part of hearings on parenting orders, these views were treated as irrelevant to determining the child’s legal parentage. For example, in Mulvany & Lane, Howard FM relied on the Family Report to conclude that the six‐year old child
… does not know that the Applicant is not his biological father. I accept that the child, in all respects, considers the Applicant to be his father.21
The child’s perspective – along with Mr Mulvany’s reciprocal ‘love, nurture and care’ for the child – was clearly a factor in determining parenting orders in Mr Mulvany’s favour.22 However, the child’s legal parentage (and therefore the nature of Mr Mulvany’s standing to apply for parenting orders) was assumed to follow genetic paternity – making the child’s perspective irrelevant in determining legal parentage.23 Whether a child’s perspective was heard therefore depended on the extent to which their regard for the
19 Quoting one of the UK children and family reporters interviewed in their research: Adrian James, Allison James and Sally McNamee, 'Turn down the volume? ‐ not hearing children in family proceedings' (2004) 16 Child and Family Law Quarterly 189, 194. See also Diane Pranzo, 'Children’s rights and children’s voices in contested custody and visitation cases in Sweden and the US' (2012) 20 Childhood 283, 286. 20 See, for example, B & B & DCSR [2001] FamCA 1371 (Dawe J, 6 December 2001). 21 Mulvany & Lane [2008] FMCAfam 473 [11]. 22 Ibid [12]. 23 Ibid [10].
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Chapter Six – Children’s Perspectives misattributed father as a parent coincided with the misattributed father’s desire to seek parenting orders regarding the child. Similarly, in Henry & Washburn, the Family Report Writer concluded that 'whilst the father is not the biological father he is nonetheless the child’s psychological father and that [X] remains his sibling regardless of paternity'.24 The psychological significance of the father to the child could not, however, be recognised as part of the child’s legal kinship identity, as legal parentage was treated as following the child’s genetic parentage. A more ambiguous case was K‐A & K‐P, where there was both a Family Report ordered and an Independent Children’s Lawyer (ICL) appointed for the two children, neither of whom was a genetic child of the husband. 25 One child had been an infant at the time of separation and had no relationship with the husband, while the older child was eight but was unaware of the circumstances of her conception. She told the Family Reporter, ‘he’s my dad’ and the reporter observed that she was ‘seriously troubled about the loss of either party as parents’.26 This was a relocation case, so it was unclear whether the loss spoken of was of regular time with the husband or of a legal parent‐ child relationship with him. The mother in this case requested a declaration that ‘the father is not the father of the child to enable the mother to amend the birth certificate accordingly’.27 Oddly, the judgment included no direct discussion of this part of the application – nor of s 65C which allows a non‐parent to establish standing to apply for parenting orders if they could show they were a ‘person concerned with the care, welfare and development of the child’. Brown FM noted that ‘the father is not genetically related’ to the child but that for all intents and purposes, he was ‘the only father H has ever known’.28 Given that both judgment and orders are silent on the parentage declaration, it is difficult to know whether Brown FM reached a view on the child’s legal parentage or just sidestepped the
24 Henry & Washburn [2010] FMCAfam 165 (3 March 2010) [69]. 25 K‐A & K‐P [2005] FMCAfam 62 (7 March 2005) [15]. 26 Ibid [98]. 27 Ibid [32]. 28 Ibid.
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Chapter Six – Children’s Perspectives issue in order to focus on the relocation issue. The mother was permitted to relocate interstate and was ordered to hold sole parental responsibility ‘on the basis of H's biological origins but predominantly because of the fact that the parties are likely to have extremely different cultural aspirations for H in future’.29 In the UK, there was some consideration of the child’s perspective in the case of Re D, where a Mr E claimed to be the genetic father of a thirteen‐year‐old boy, T, and sought orders for testing so that he could pursue orders for parental responsibility and time with the child. The boy had lived with his paternal grandmother, a sibling and a cousin since he was a baby. He wanted nothing to do with Mr E or with genetic paternity testing. Hedley J remarked:
And for the purposes of understanding this case and reaching the right result in it, it is very important that as well as looking at this case through the eyes of the adults, the court also looks at it through the eyes of T. The reality is clearly demonstrated by the evidence of the social worker and the guardian that at the moment T is adamant to anyone who will listen to him that… AD is his father, that he wants nothing to do with the idea of the applicant and that he is deeply resistant to scientific testing. None of those matters are decisive, but they remain relevant as will become apparent.30
Under the Children Act 1989 (UK), Hedley J was required to ‘pay particular regard to the views of the child having regard to his age and understanding’. His Honour found that the child was not competent ‘in the Gillick sense of that term’,31 but was still able to understand the ‘essence of the issue between the adults’ including what the paternity testing meant and what the conclusions might be.32 Yet despite this acknowledgement, Hedley J agreed that ‘it is best for everyone for the truth about a disputed paternity to be known’, and made orders for genetic
29 Ibid [190]. 30 Re D (Paternity) [2006] EWHC (Fam) 3545 (Hedley J) [16]. 31 Referring to the ‘mature minor’ test set out in Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112 (UK House of Lords). This test deems a minor is competent to consent to medical treatment once they achieve ‘a sufficient understanding and intelligence to enable them to understand fully what is proposed’. Adopted by the High Court of Australia in ‘Marion’s Case’: Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15. 32 Re D (Paternity) [2006] EWHC (Fam) 3545 (Hedley J) [28].
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Chapter Six – Children’s Perspectives testing. The order requiring the child to provide a sample was, however, stayed indefinitely with liberty to restore, on the basis that it was ‘not in his [the child’s] best interests to press it now given the other turbulence in his life and his present deep resistance to it’.33 The child’s perspective was therefore heard with regard to the origins information aspect of legal parentage, but in Hedley J’s view, overridden by a generalised approach to best interests and genetic ‘truth’. The stay, however, allowed the child to retain his current legal kinship identity, at least temporarily. It is unclear whether the child’s perspective would have been taken into account in this way had the child not expressed strong resistance to testing and communicated his willingness to disobey any court order requiring it. Even then, his resistance was viewed as a temporary obstacle to be overcome in reaching a result which, in the court’s view, accorded with the child’s best interests because ‘it is in his best interests to know the truth and to do so sooner rather than later’.34 Borrowing the Gillick test for competence developed for deciding whether children are competent to consent to medical treatment on their own behalf, Hedley J concluded that D was not Gillick‐ competent – that is, he had not achieved ‘a sufficient understanding and intelligence to enable him to understand fully what is proposed’.35 In spite of this, Hedley J observed that
he does understand the essence of the issue between the adults; that he does understand what testing means and what its conclusions might be; that his strong opposition to it is essentially a view of his own and that this whole issue of paternity is a big issue for him at a highly emotive stage of his life.36
Hedley J acknowledged that Mr E’s application for T to come and live with him had the effect of ‘challenging the only point of emotional security that T had known in his life’.37 Hedley J did not address, however, the effect that genetic testing and a finding of non‐paternity would have on D’s legal relationship with his paternal grandmother and
33 Ibid. 34 Ibid. 35 Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 188‐189 (UK House of Lords). 36 Re D (Paternity) [2006] EWHC (Fam) 3545 (Hedley J) [26]. 37 Ibid [16].
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Chapter Six – Children’s Perspectives his legal kinship identity as a member of her family and as a sibling and cousin to the children he was being raised alongside.38 As in the Australian judgments, legal parentage was treated as a fact to be ascertained, rather than a legal status triggering a number of distinct legal functions. These family life aspects for the child were considered by the European Court of Human Rights in a case in 2016, which concerned a child who was born and conceived in the year his mother and her husband were separated, though they reunited soon after he was born.39 When the child was eight, a man (Mr G) claiming to be the child’s biological father sought involvement, and the French courts made an order that the mother’s husband’s recognition of paternity be set aside, that the mother have sole parental responsibility and Mr G have visitation with the child.40 The child was twelve by this time and wrote several letters to the court stating he objected to any change in his parentage or parenting arrangements.41 His parents appealed to the European Court of Human Rights, which determined that changing the legal father‐child relationship indeed interfered with the child’s right to respect for private and family life, but the interference could be justified if it aimed to protect the rights of the biological father.42 The Court found that here, the child’s ‘primary interest was to know the truth about his origins’ even if that was against his express wishes, and even if it resulted in unwanted changes to his legal parentage.43 In contrast, when the person whose genetic paternity was to be tested was an adult – for example when legal parentage was raised in the context of inheritance disputes – there has been strong judicial support for hearing from the person and taking
38 Ibid. 39 Mandet v France [2016] Eur Court HR 82. 40 Child Rights International Network, Mandet v France (Summary) (2018)
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Chapter Six – Children’s Perspectives into account their wishes regarding genetic paternity testing. For example, Barrett J in Aw v Cw remarked that:
where the child is of full capacity, his or her wishes on whether the parentage question should be pursued and whether he or she should undergo testing will be
afforded significant weight.44
The lack of space to consider the perspectives of children and young people under 18 in determinations of legal parentage in the family law context (as with the rhetoric underpinning legal parentage discussed in Chapter Four) suggests a view of minors as objects of law rather than as legal persons with a developing capacity for legal subjectivity.
2 Children’s distress – crisis of disclosure
Despite the lack of space to hear children’s perspectives on questions of legal parentage, judges have often discussed evidence of the distress experienced by children whose paternity was disputed. At times, this has been via a Family Report prepared for the purposes of deciding parenting orders, at other times judges or parties have remarked on, or hypothesized about, a child’s distress. The level of consideration given to children’s perspectives in disputed parentage cases varies significantly depending on the context and purpose of the proceedings and the age of the child. Some judges have extrapolated from the facts to remark on how the child may have experienced the situation, but without any direct evidence from the child themselves. For example, Scarlett FM remarked in Levine that, ‘[f]rom the child’s point of view, his father (as he thought) has rejected him, for no apparent reason.45 Similarly, in B & M, Bryant CFM (as she then was) noted that the misattributed father ‘has been a father to all three of them and they have regarded him as such’.46 In neither case, however, did the judge order a Family Report or the appointment of an ICL to hear from
44 Aw v Cw [2002] NSWSC 301 (17 April 2002), [33] per Barrett J. 45 Levine & Levine [2011] FMCAfam 821 [78]. 46 B & M [2003] FMCAfam 113 [48].
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Chapter Six – Children’s Perspectives the child about who they regarded and relied on as a parent or on their sense of kinship and identity arising from parenting relationships. In C & G & M, where the mother was applying for parenting and property orders after her lover had been shown to be the genetic father of her two younger children, no Family Report was ordered, nor ICL appointed. Nonetheless, Ryan FM concluded that ‘although the evidence is scant, I am satisfied that the children love the husband and he is a person who is very important to them’.47 Nevertheless, the children’s view of the husband as their ‘daddy’ (as indicated in affidavits from the adults, rather than any direct evidence from the children themselves) had no effect on Ryan FM’s determination that Mr UM, and not the husband, was the children’s legal father, and that the children would therefore spend Father’s Day with him and not with the husband. In other cases, mothers have given evidence of their children’s distress. For example, in Ames & Ames, the mother described how her fourteen‐year‐old son was ‘distressed and inconsolable’ after his father had taken him for DNA paternity testing under the ruse of ‘health testing’ and then had told the child that he was not his genetic father. 48 She reported that this disclosure had a ‘significant detrimental effect upon the previous relationship between the husband and the child’, though the husband swore in his affidavit that he had ‘a very close and loving relationship’ with the son.49 Similarly, in Brianna (where the husband had met the mother when the child was a toddler, but signed the child’s US birth certificate as ‘father’ along with a waiver of his right to challenge paternity) the mother expressed concern that it would be ‘catastrophic’ for the eleven‐year‐old child to have ‘his identity … taken away’ if the court ordered DNA testing.50 The mother sought to subpoena the child’s psychologist to produce correspondence with the husband, which may have shed light on the child’s views regarding testing and the potential change to his legal parentage. Chief Justice
47 C & G & M [2001] FMCAfam 83 (Ryan FM, 25 July 2001) [86]. 48 Ames & Ames [2009] FamCA 825 (Dawe J) [20]. 49 Ibid [105], [17]. 50 Citing mother’s affidavit Brianna v Brianna [2010] FamCAFC 97 (28 May 2010) [121] (Bryant CJ, Finn and Thackray JJ). Even though the court treated the application for genetic parentage testing as a parenting order, and applied a best interests analysis, no Family Report was ordered nor was an Independent Children’s lawyer appointed.
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Bryant concluded, however, that this did ‘not appear to be of relevance to the issues to be determined’.51 The first instance Magistrate had categorised the disputed as a ‘financial matter’ rather than a ‘child related proceeding’ because the husband had not sought parenting orders, and this categorisation may have contributed to the lack of Family Report or appointment of an ICL.52 Nonetheless, Finn and Thackray JJ (with whom Bryant CJ agreed in their re‐ hearing of the matter) treated the child’s interests as the ‘the determinative, or in other words, paramount consideration’.53 Yet in assessing best interests, Finn and Thackray JJ downplayed the child’s voice (as reported by the mother), and prioritised ‘truth’ over potential harm to the child’s identity:
This recognition by the law of the child’s long term interest in knowing the truth about his parentage, coupled with the likelihood earlier discussed of the child already being aware, or of his becoming aware in the future, of the controversy surrounding his paternity, must outweigh not only the wife’s expressed concerns regarding the threat to his loss of identity, but also the emotional and psychological harm which she reports he has suffered.54
Finn and Thackray JJ concluded that any objections the child may have to testing ‘must be subsidiary to the long term interest which the law recognises that he has in knowing about his parentage (or at least, so much as can be known at the present time)’.55 Any prospect of hearing the child’s voice was therefore subordinated to the judicial view that the child’s best interests lay in knowing the genetic ‘truth’ of his parentage, even if that meant severing legal and financial links with the man who had raised him. In cases where a Family Report was ordered, reporters often remarked about the effect for the child of severing a relationship with a misattributed father, though whether this was based on hearing from the child or on the reporter’s own professional
51 Ibid [53],[56]. 52 Citing Magistrate Fleming in the Magistrates Court of Western Australia in Perth, ibid [119]. See also Finn & Thackray JJ at [166]. 53 Ibid [172]. 54 Ibid [180]. 55 Ibid [181].
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Chapter Six – Children’s Perspectives opinion was sometimes unclear. For example, in Re C & D, the psychologist providing the family report advised that ‘to stop contact [with the misattributed father] would leave the child emotionally distressed, confused and with a feeling of abandonment causing him to lose a lot of trust...’.56 There was evidence from the husband’s sister that the child had referred to the intervener (the genetic father, and the mother’s current fiancé) as "Toy Daddy" or "Pretend Daddy" and the husband as "Real Daddy".57 If there was further evidence about who the child regarded as his parents, it was not discussed in the Full Court judgment. Just as judges allowed greater space to hear from adults whose paternity was in doubt, they also tended to express more concern for the distress and trauma which forced genetic paternity testing and a potential change in legal parentage could cause when the person was an adult. For example, in Williams v Smith, the ACT Supreme Court refused an application for parentage testing of the adult daughter of the deceased, remarking that
this Court should be mindful of the potentially traumatic consequences of ordering DNA analysis against a child (albeit now an adult child) which could have the effect of undermining longstanding beliefs of parentage.58
Likewise, in Piggot v Harrex, where the executors sought parentage testing of an adult beneficiary who had been treated by the deceased as a daughter (though doubts about her paternity had been raised decades before), Slicer J said of the claimant:
A scientific test which shows her belief to be illusory would have a devastating effect on her being. History ought not to be re‐written because of technological advance and reasonable belief ought be respected. Her position, under the terms
56 Re C & D [1998] FamCA 98 (1 July 1998) [4.5]. 57 Ibid [8.4.5]. 58 Williams v Smith [2006] ACTSC 65 (28 June 2006) [9]. Connolly J had also concluded that had a test been conducted, it would not rebut the presumptions of parentage arising from the daughter being born during her mother’s marriage to the deceased and from the deceased being listed on her birth certificate because 1. Presumptions can only be rebutted by a Parentage Declaration and 2. A Parentage Declaration can only be made declaring a person to be a parent of a child, not simply that a person is NOT a parent of a child and 3. Here, there was no evidence regarding any other potential genetic father who could be identified via a genetic test and declared a parent, therefore pushing the deceased off the birth certificate, as the certificate only allows for two parents. See [8].
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of the will, are [sic] neither enhanced nor lessened by the results of scientific analysis.59
Slicer J acknowledged that the beneficiary
… has a real interest in protecting her belief of identity and memory of relationship which ought to be undisturbed by scientific enquiry. Distress occasioned to a child might outweigh the benefits of having the procedure conducted.60
Ultimately, although Slicer J felt that ‘[a] court ought be reluctant to interfere with the inner self of another’, testing was ordered on the basis that the beneficiary was able to refuse testing without penalty (though the court could then draw an adverse inference from her refusal).61 Her perspective regarding her kinship identity was treated as relevant to the question of whether testing was required to establish her genetic origins, but the bundled nature of legal parentage meant that her reliance on and identification of the deceased as a parent could not be considered on the question of her legal kinship identity.
3 ‘Confusion’ where children’s views of their parentage were at odds with biotruth
Where indirect evidence of the children’s views has indicated that they regard their misattributed father as their (social and psychological) father, these views have sometimes been dismissed as ‘confusion’.62 For example, in C & G & M, Ryan FM suggested that the children were ‘very confused about the fact of two fathers' involvement in their lives’.63 The husband’s refusal to recognise Mr UM as the children’s father and to ‘respect the role the mother and father have as their parents’ was viewed
59 Piggott & Anor v Harrex & Anor [2000] TASSC 72 (21 June 2000) [4]. 60 Ibid [14]. 61 Ibid [17]. 62 C & G & M [2001] FMCAfam 83 (Ryan FM, 25 July 2001); Re C & D [1998] FamCA 98 (1 July 1998). 63 C & G & M [2001] FMCAfam 83 (Ryan FM, 25 July 2001) [71]. See also the discussion in Re C & D, where counsel for the mother and the genetic father argued that the child would be ‘confused by having two fathers’ and where Nicholson CJ, Fogarty and Baker JJ concluded that ‘for the sake of the child, [the husband] and his family will have to accept a less prominent position in relation to the child’ Re C & D [1998] FamCA 98 (1 July 1998) [8.4.14].
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Chapter Six – Children’s Perspectives by Ryan FM as a failure to meet ‘the children’s emotional needs’.64 The children’s contact with the man they had known as their social father was therefore restricted due to concerns that he would ‘continue to undermine the children's relationship with their parents’.65 Because they did not align with the results of the genetic paternity testing, the children’s perspectives of the husband as their father were viewed as problematic, rather than as a genuine expression of their kinship identity. Likewise, in Re C & D, the child’s understanding of his family was treated as an error to be corrected, requiring the court to manage the ‘confusion involved to the child as a result of the change (so far as he is concerned) in the identity of his father’.66
4 Parentage from the parent’s perspective
In contrast to all the child support cases examined, and most of the parenting order cases, in the citizenship context, the Federal Court in Hudson acknowledged that ‘the status of being a parent has been socially defined in a great variety of ways that do not always reflect the biological facts’.67 The ordinary meaning of ‘parent’, the court concluded, signifies ‘a genetic or non‐genetic connection with another’.68 In discussing the ways in which a parent‐child connection is socially defined, however, the court focused on the assumptions and intentions of the adults involved, giving the example of a ‘person accepting the status of a parent at the time of birth’.69 In a similar vein, the forensic psychologist gave expert evidence
that a person who is not a biological parent may assume the role of a parent for a child by virtue of the strength of attachment arising between the child and that other person.70
64 C & G & M [2001] FMCAfam 83 (Ryan FM, 25 July 2001) [88]. 65 Ibid. 66 Re C & D [1998] FamCA 98 (1 July 1998) [8.4.9]. 67 Hudson v Minister for Immigration & Citizenship [2010] FCAFC 119 [2010]). 68 Ibid [48]. 69 Ibid [68]. 70 Ibid [16].
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Hudson concerned two people who were applying for citizenship by descent, but who had both discovered via genetic paternity testing that their Australian citizen parent was not in fact a genetic parent. At first instance, the Tribunal heard evidence from one applicant (Ms McMullen, aged 22 at the time of the hearing) but not from the other, who was only two years old at the time. On the facts, the Tribunal found that ‘Ms McMullen regarded Mr McMullen as her father and he, after his initial doubts, regarded her as his daughter’.71 While the evidence showed that this was a mutual acknowledgment of a parent‐child relationship, in deciding that there was a father/daughter relationship sufficient to ground a claim for citizenship by descent, the Tribunal based its decision on Mr McMullen’s belief ‘on reasonable grounds that he was her father, and had assumed that role over an extended period’.72 Likewise, the decision of the Full Federal Court to dismiss the Minister’s appeal focused on Mr McMullen’s level of commitment as a parent:
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.73
While this is a much more expansive definition than the strictly biological one urged by the Minister, it nonetheless understands legal parentage as shaped exclusively by the perspectives of adults – in terms of an adult’s commitment rather than a child’s reliance or some combination of the two. For the purposes of the Australian Citizenship Act 2007 (Cth), the court’s focus was on whether the citizen was a parent at the time of the child’s birth, and therefore at a time when the child was incapable of expressing their perceptions about who they regarded as a parent. This focus on the assumptions and acceptance of the adult fails to acknowledge, however, the interpersonal way in which parentage is socially defined, and the ways in which children’s reliance and understanding may help create and build the parent‐child relationship.
5 Children’s legal parentage as instrumental to other agendas
71 Ibid [15]. 72 Ibid [17]. 73 Ibid [129].
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In many of the child support cases in which a child’s paternity is disputed, the child is only mentioned in terms of conception. Their existence, conception and legal kinship identity are instrumental to a presumed father’s status as a parent, and his liability for child support or other obligations. This is the nature of relationship status: the one status affects more than one person. But rather than being dealt with in a relational way, hearing the voices and interests of presumed father, child, mother and biogenetic father (if there is one on the scene), the current treatment of disputed paternity in child support cases treats the child’s legal parentage only as supplying evidence for other substantive legal questions – as instrumental in determining child support or parenting orders. In 2007, a journalist interviewed the three children (by then, young adults) at the heart of the Magill case (where genetic testing showed that the husband was not the genetic father of two of the three children, and he subsequently sued to end his child support liability and claim damages for deceit against the mother).74 One remarked:
What kind of father sues his children's mother knowing that if he wins, his children lose? They end up homeless because the bloke wants to punish the mother. That's what dad has done and he nearly succeeded.75
All three refer to Liam Magill as ‘dad’, and they express anger at his actions precisely because they still regard him as their father. They feel wronged and abandoned by someone who had an obligation to them as a parent because of their history together. What is troubling is that this kind of obligation – based on the child’s knowledge of their family and reliance on the adults who raised them – is unrecognised within current family law. It is not just Mr Magill (or other misattributed paternity fathers who walk out of their children’s lives) being callous and failing to respond to
74 Julie‐Anne Davies, 'Sex, Lies & DNA', The Bulletin, 20 March, 18‐24; Magill v Magill [2005] VSCA 51 [2005]); Magill v Magill [2006] HCA 51. 75 Davies, above n 74.
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B Evidence from Research with late‐discovery Adopted and Donor‐conceived people
In many misattributed paternity cases, from the child’s perspective, their circumstances are similar to those of donor‐conceived children, as one of the people they relate to as a parent is not a genetic progenitor. This means that disputed paternity cases involve all the relational complexities which Nordqvist has described surrounding disclosures of donor conception, but with the added sting of moralistic judgments about the mother’s sexual and relationship behaviour and often feelings of hurt, betrayal and humiliation on the part of the misattributed father.76 There are also significant differences around the non‐genetic parent’s conscious decision to parent a non‐genetic child in donor‐conceived families, and the emotional security this knowledge may provide to the child.77 Donor conception is also usually much less charged a subject for parents than misattributed paternity, and is a shared challenge for the parents rather than a source of conflict or feelings of betrayal between them. Hearing the accounts of donor‐conceived people is nonetheless one way to gain insight into how children and young people understand genetic parentage when they are being raised by a non‐genetic parent. This section examines a number of themes arising from research hearing from late‐discovery adopted and donor‐conceived people which bear relevance on the involvement of children and young people in decisions about their legal parentage in other contexts.
1 Access to origins information and the option of contact is valued by adopted and donor‐conceived people
76 Petra Nordqvist, 'The Drive for Openness in Donor Conception: Disclosure and The Trouble with Real Life' (2014) 28 International Journal of Law, Policy and The Family 321, 334. 77 In some misattributed paternity cases, the non‐genetic father also knew he was not a genetic father and embarked on parenting the child nonetheless – eg Brianna v Brianna [2010] FamCAFC 97 (Bryant CJ, Finn and Thackray JJ, 28 May 2010); Clarkson & Zammit [2014] FCCA 1099 (Phipps J, 30 May 2014); Cross & Hagan [2016] FCCA 136 (9 February 2016).
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Research with donor‐conceived people appears to refute the automatic link between identity and genetic parentage assumed by many of the parentage dispute judgments, demonstrating instead that ‘attributing meaning and significance to genetic connection is a social process’.78 In the donor conception context, interviews with donor‐conceived children and adults indicate that most who made contact with donors did so because they were ‘curious about [the] donor’s looks’ and wanted ‘to learn about ancestry’.79 In their systematic review of the empirical research, Blyth et all reported that where donor‐conceived people wished for a relationship with their donor, ‘rarely did this extend to wanting a parent‐child relationship’80 The donor‐conceived adolescents interviewed in Blake’s study had no ‘deeper interest in their sperm donor beyond this sense of curiosity, particularly regarding possible resemblances and inherited traits’ and did not indicate that they wanted an ongoing relationship with him.81 For those who did make contact with a donor, most described their relationship as ‘like a friend’, ‘aunt/uncle’ or ‘complete stranger’. 82 Few reported that their donor felt ‘like a parent’. 83 Donor‐conceived people often use extended family terminology or invented terminology to distinguish connections with donor kin from their immediate family – generating new categories of kinship such as ‘diblings’ (donor siblings).84 Jeanette Edwards remarks:
Diblings share neither a childhood, nor a household, nor live‐in (or hands‐on) parents, and they need not know their shared donor but trace their connection through him (Edwards, 2013). Furthermore, ‘donor‐conceived families’ who
78 Robert Leckey, 'Identity, Law, and the Right to a Dream?' (2015) 38(2) Dalhousie Law Journal 525, 539. 79 Diane Beeson, Patricia Jennings and Wendy Kramer, 'Offspring searching for their sperm donors: how family type shapes the process ' (2011) 26 Human Reproduction 2415, 2417; An Ravelingien, V Provoost and Guido Pennings, 'Donor‐conceived children looking for their sperm donor: what do they want to know?' (2013) 5 Facts, Views & Vision in ObGyn 257. 80 Eric Blyth et al, 'Donor‐conceived people's views and experiences of their genetic origins: A critical analysis of the research evidence' (2012) 19 Journals, Journal of Law and Medicine 769, 784. 81 Blake et al, ‘Families Created by ART’ above n 9, 265. 82 Beeson, Jennings and Kramer, above n 79. 83 Ibid. 84 Naomi Cahn, 'The New Kinship' (2012) 100 The Georgetown Law Journal 367.
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identify with a donor in common are connecting themselves in a wider kinship
collectivity that some are referring to as a clan … [They] constitute themselves predominantly on the Internet, postings also describe, in warm and positive kinship terms, ‘family reunions’ and ‘clan get‐togethers’.85
Many adopted and donor conceived people understand their ability to access information about their origins as an important component of their legal subjectivity as legal persons. Denial of that access is experienced by many donor conceived and adopted people as a ‘lack of control and self‐determination over their own lives and futures’.86 This denial of agency is particularly prominent in the accounts of late‐ discovery adopted and donor‐conceived people. Riley, in her study hearing from late discovery adoptees and donor conceived people, notes,
Being reduced to silence; that is, denied autonomy, emerges as a significant feature in these late discovery stories when those affected perceive that they have been instrumentalised; that is, they have had important information withheld from them in order to protect or benefit others, usually to conceal the stigma of infertility and to protect the infertile.87
2 Most adopted and donor‐conceived people regard their social parents as their parents
Research with donor‐conceived people indicates that the emotional quality of parent‐child relationships does not depend on the existence of a genetic link. For example, Golombok et al in their study of gamete donation families found the quality of parent‐child relationships to be ‘similar, or superior to, natural conception families’.88
85 Jeanette Edwards, 'Donor Conception and (Dis)closure in the UK: Siblingship, Friendship and Kinship' (2015) 65 Sociologus 101, 108. 86 Ms Caroline Lorbach, National Consumer Advocate, Donor Conception Support Group of Australia Inc. Submission No 7 to NSW Legislative Assembly Law and Safety Committee, Inquiry into Inclusion of donor details on the register of births, 15 December 2011, 12. 87 Helen J Riley, 'Listening to late discovery adoption and donor offspring stories : adoption, ethics and implications for contemporary donor insemination practices' in Ceridwen Spark and Denise Cuthbert (eds), Other People's Children : Adoption in Australia (Australian Scholarly Publishing, 2009) 145‐160 156. 88 Blake, Lucy et al, '‘I Was Quite Amazed’: Donor Conception and Parent‐Child Relationships from the Child's Perspective' (2014) 28 Children & Society 425, 426, citing Golombok, Susan et al, 'Children
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This aligns with more general research into children’s views of family and parent‐child relationship which shows that what children value about their relationships with parents is the emotional quality and level of mutual caring in a given parenting relationship.89 For example, a thirteen‐year‐old in Morrow’s study defined family in these terms:
A family is a group of people which all care about each other. They can all cry together, laugh together, argue together and go through all the emotions together. Some live together as well. Families are for helping each other through life.90
When they were consulted, children’s views of family accord more closely with relational accounts of family in which ‘family’ is seen as ‘a constructed quality of human interaction or an active process’.91 As James remarks:
Whether or not an additional biological link can be claimed to ‘my mum’ or ‘my dad’, it is the quality of the relationship which pertains between those adults who parent them and the children who are parented which, for children, matter most.92
Children’s emphasis on the emotional quality of a parent‐child relationship means that they relate not to a ‘mother’ or ‘father’ in the abstract, but to the particular person who has cared for them and played a parental role in their life and with whom they have an attachment relationship.93 This relational, rather than an essentialist definition of
Conceived by Gamete Donation: Psychological Adjustment and Mother‐Child Relationships at Age 7' (2011 ) 25 Journal of Family Psychology 230. 89 Anna Malmquist et al, ''A daddy is the same as a mummy’: Swedish children in lesbian households talk about fathers and donors' (2014) 21 Childhood 119, 121. 90 Virginia Morrow, Understanding families : Children's Perspectives (London, National Children’s Bureau, 1998), 27 cited in James, above n 8. See also Bren Neale, Amanda Wade and Carol Smart, '“I just get on with it”: Children’s Experiences of Family Life following Parental Separation or Divorce' (Working Paper No 1, Centre for Research on Family, Kinship & Childhood, University of Leeds. 91 David Morgan, 'Risk and Family Practices: Acounting for change and fluidity in family life' in Elizabeth B Silva and Carol Smart (eds), The New Family? (Sage, 1999) 13, 16. 92 James, above n 8. 93 Ibid 190.
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‘parent’, means that children experience shock and trauma when a court or parent tells them that a person who has raised them is not a parent.94 One of the emotional qualities which matters to children is unconditional commitment from a parent. For example, Diane Scott‐Jones notes psychological studies which indicate that rejection of a child by a parent is associated with negative outcomes for the children.95 This aligns with research indicating that ‘children and adolescents need stable, caring social relationships with adults.’96 Likewise, in Carol Smart’s study interviewing children about their families after divorce, she observed that for the children who reported satisfaction with shared care arrangements it was not the formal structures of how many hours they spent at each parent’s house which counted, but the quality of relationships – between children and each parent, but also between the parents. While some non‐genetic fathers feared that telling their child about their donor conception would lead to their child rejecting them, studies have found no sign of such rejection.97 In Blake et al’s study, donor‐conceived adolescents were aware that their conception meant that they lacked biological or genetic relatedness to their father, but perceived this ‘to be insignificant in determining their feelings towards him’.98 These adolescents were not confused about the identity of their father – they did not consider the sperm donor a father at all, whereas their social father ‘is always going to be my dad’.99 These views were shared even among adolescents who were not (to their knowledge) donor conceived. As part of a study on how to support parents disclosing donor conception to their children, Kirkman et al conducted group interviews with adolescent students and asked them about a scenario in which parents who had
94 See, for example Ames & Ames [2009] FamCA 825 (Dawe J); Brianna v Brianna [2010] FamCAFC 97 (Bryant CJ, Finn and Thackray JJ, 28 May 2010). 95 Diane Scott‐Jones, 'Paternity Testing, Family Relationships and Child Well‐Being' in Mark A Rothstein et al (eds), Genetic Ties and the Family: The Impact of Paternity Testing on Parents and Children (John Hopkins University Press, 2005) 50‐69, 56. 96 Ibid 66. 97 Blake et al, ‘Families Created by ART’ above n 9, 256. 98 Ibid. 99 Donor conceived adolescent, quoted in ibid.
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Chapter Six – Children’s Perspectives conceived their adolescent son via sperm donation were considering when and how to disclose information about his donor conception to him. While the adolescents struggled with the idea that genetic parentage was somehow more ‘real’, they nonetheless sought to distinguish lived relationships with parents who raised them as more significant in terms of defining ‘dad’:
I don’t think ‘dad’ is defined by a sperm. (Girls, Year 11)
The father is the person who’s there from the start, who raised you and teaches you, you know. And there’s just some other man who happens to be your biological father. (Boys, Year 9)
He will always be their father, biological or otherwise, but still their father that’s
raised them. You don’t have to be biological to be a father. (Boys, Year 8)100
When the students were asked how hypothetical parents should tell their donor‐ conceived child about his conception, they emphasised the continuity of the parent‐ child relationship:
Just say that they are their parents, but that the actual sperm came from a donor. … Like, ‘We are your mum and dad and we always will be’. And, like, making sure that the child understands that this is not going to change the relationship that they’ve had for the past 18 years. (Boy, Year 12)
Kind of reassure him that, you know, that they actually are the parents though, you know, so, like, not to feel any different. You know? ‘Because we still are, as we always were, your parents, and this is just another factor’. (Girl, Year 10)101
In a recent study by Zadeh et al hearing the perspectives of adolescents conceived using surrogacy or gamete donation, a number of adolescents were clear that
100 Maggie Kirkman, Doreen Rosenthal and Louise Johnson, Telling It Your Way: A Guide for Parents of Donor‐Conceived Adolescents (Infertility Treatment Authority, 2007) 19, 44, 45. 101 Ibid 29.
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Chapter Six – Children’s Perspectives the nature of their conception did not change the nature of their relationship with their parents:
Um, it didn’t really bother me. Mum is still my mum. Dad is still my dad. (Traditional surrogacy)
I don’t think it really affects anything. I consider that my dad is still my dad, so.
(Sperm donation)102
Of the adolescents interviewed who didn’t already have contact with their donor or surrogate, most were keen to find out about them or meet them, in some cases describing them in familial terms:
‘Yeah probably like [to know] who he is, and maybe meet him because he is my dad,
but I’m not too bothered.’ (Sperm donation)103
These views – combining curiosity around origins with an emphasis of the significance of social parents – seem to persist as children reach adulthood. For example, the Donor Conception Support Group, a support and advocacy organisation bringing together recipient parents, donor offspring, donors, medical professionals, counsellors and social workers, remarked in 2011 that,
Experience has shown that in the large majority of cases of those adoptees who have sought reunion most have found their relationship with their adoptive parents unchanged or even strengthened. The majority of adoptees who seek out birth parents do not seek another mother and father or substitute parents, rather they seek answers to questions of identity, and as such the position of their adoptive parents as 'mum' and 'dad' remains unchallenged.104
102 Zadeh et al, above n 5. 103 Ibid 5. 104 Ms Caroline Lorbach, National Consumer Advocate, Donor Conception Support Group of Australia Inc. Submission No 7 to NSW Legislative Assembly Law and Safety Committee, Inquiry into Inclusion of donor details on the register of births, 15 December 2011.
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Similarly, a study of adoptees in Scotland by Janet Carsten indicates that positive relationships with adoptive parents were associated with positive interactions with birth family.105 Carsten reports:
There could be no mistaking the conclusion that where relations with birth kin could be successfully established, this was in addition, rather than an alternative, to positive relations with adoptive kin. They tended also to involve ties of siblingship or half siblingship.106
It may be that these children are able to experience both security with their adoptive parents, and the ability to gain origins information and to negotiate contact with birth family, perhaps free of the expectation that birth family might provide something that was lacking in their adoptive family. There are also indications that for donor‐conceived people, having both their parents (including the non‐genetic parent) recognised as legal parents is important. For example, one adult child of a lesbian couple remarked in a submission to the 2007 Victorian Law Reform Commission (VLRC) inquiry on Assisted Reproductive Treatment and Adoption:
I think that a lack of language and laws supporting a child’s familial situation is detrimental for the child’s sense of belonging within that family. If my living situation had have been named ‘a family’, and my two female caregivers ‘parents’ within legal and social discourses, I would have felt more secure and like less of an outcast.107
3 Being heard on changes to legal kinship identity is valued
After extensive consultations with adopted people, advocacy and community groups and researchers working in the field, the VLRC recently concluded that ‘current adoption law does not provide well for children’s views to be considered’,108 and that
105 Janet Carsten, 'Connections and Disconnections of Memory and Kinship in Narratives of Adoption Reunions in Scotland' in Janet Carsten (ed), Ghosts of Memory: Essays on Remembrance and Relatedness (Blackwell, 2007) 83, 85. 106 Ibid. 107 Assisted Reproductive Technology and Adoption: Submissions Snapshot, (4 April 2017) Victorian Law Reform Commission
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‘the central figure in adoption – the child – is not heard’.109 The consultations for the Review indicated that many adopted people want a say in any changes to their legal kinship identity (and that of other children in the future), such as placement for adoption, name changes, and obtaining an integrated birth certificate listing both adoptive and natural parents.110 The Review therefore recommended that, where a change of legal parentage is being contemplated in an adoption context:
[t]he child has the maximum opportunity to participate in decision making about their adoption, including decisions about placement, contact with the family of origin, changes of name, and whether an adoption order should be made.111
In addition, the Review recommended giving adopted people the option of integrated birth certificates, which list both birth and legal parents.112 These measures seek to build in the perspectives of adopted people, hopefully reducing the trauma associated with adoption and enabling adopted people access to origins information and the option of some continuity of relationships with birth family.
4 Secrets and lies can cause harm
Like misattributed paternity children, the genetic parentage of late‐discovery adoptees and donor‐conceived people has been misattributed, but with the involvement of their social parents as well as the law. The bundled concept of legal parentage necessarily creates a presumption that the parents listed on a child’s birth certificate are biogenetic parents as well as legal parents. Where a child’s donor‐ conceived status is kept secret, discovering that this presumption is incorrect can trigger shock, trauma, and questions around their personal and familial identity.113 The mechanisms designed to provide adopted or ART‐conceived people with information about their genetic heritage or the opportunity to connect with genetic kin
109 Ibid 42. 110 Ibid xiii. 111 Ibid 42. 112 Ibid xv, xiii. 113 Riley, ‘Listening’ above n 87.
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Chapter Six – Children’s Perspectives only work if the person is made aware of their donor conception or adoption.114 If parents delay disclosure, the appearance of their names as legal parents on their birth certificate suggests that the child’s biogenetic, social and legal parentage all align, conforming to the biotruth norm. Same‐sex parented families are the exception, as the fact of donor conception becomes obvious to the child as soon as they learn the basics of human reproduction. The evidence on how donor‐conceived people are affected when they cannot access identifying information about their gamete donors has, however, been described as ‘patchy’ by the Nuffield Council in the UK.115 Michelle Taylor‐Sands argues that the claim that being denied identifying information about their gamete donors is likely to cause donor‐conceived people damage to their sense of identity relies heavily on anecdotal evidence from ‘a particular group of [donor‐conceived individuals] who learnt of their donor‐conceived status later in life’.116 Taylor‐Sands suggests that the potential harm to donor‐conceived people is less about the genetic information itself and more about the ‘circumstances around disclosure. 117 Donor‐conceived people’s reactions to disclosure and views about their genetic origins and identity vary significantly depending on whether, and for how long, parents have kept their donor‐conceived status a secret. Those who have always known they are donor‐conceived appear to have little trouble assimilating this information into their identity and tend to place less emphasis on genetic identity.118 Research indicates that most donor‐conceived children born into same‐sex parented or single mother by choice families grow up having always known that they are donor conceived – correlating with
114 For example, donor registers, opened adoption records and ‘time to tell’ campaigns: Kirkman, Rosenthal and Johnson, above n 100; Louise Johnson, Kate Bourne and Karin Hammarberg, 'Donor conception legislation in Victoria, Australia: the "Time to Tell" campaign, donor‐linking and implications for clinical practice' (2012) 19 Journal of Law and Medicine 803. 115 Nuffield Council on Bioethics, ‘Donor Conception: Ethical Aspects of Information Sharing’ (Report, April 2013) xxvi, cited in Michelle Taylor‐Sands, 'Removing donor anonymity: What does it achieve?: Revisiting the welfare of donor‐conceived individuals ' (2018) 41 University of New South Wales Law Journal 555, 564. 116 Ibid 565. 117 Ibid. 118 Jadva et al, above n 5.
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Chapter Six – Children’s Perspectives better adjustment for the child than late disclosure.119 When disclosed early, the information can feed into the process of building narratives of self and belonging – for example, there is evidence that early disclosure regarding adoption is associated with children having more coherent narratives.120 In contrast, those informed of their donor‐conception as adults or in adolescence are more likely to view it as a crucial part of their identity with some experiencing it as ‘state sanctioned fraud and deception’ about their origins.121 For many, it was ‘the discovery of prior parental secrecy/deception that had been more damaging to their trust in, and relationship with, their parents than their parents’ use of donor conception as such’.122 Blyth et al noted the ‘largely negative aspects of later disclosure or discovery’ and the fact that many donor‐conceived people recommended that parents disclose before adolescence, ‘preferably in early childhood’:123
In most studies, participants who were told later in life or who discovered their donor origins in other ways than through planned parental disclosure, often reported the information coming as an unwelcome shock that challenged a previously‐held sense of personal identity, resulting in a sense of genetic discontinuity, and difficulty in assimilating their new identity as being donor conceived.124
Donor‐conceived people’s feelings of confusion are strongly correlated with the age at which they have been told they were donor‐conceived. In Beeson et al’s study, nearly half (45.8%) of those who were told after turning 18 felt confused, as opposed to only 8.6% of those who had ‘always known’.125 Blake et al reported that most of the children and adolescents in their study ‘seem able to assimilate information about their
119Susan Golombok, 'Letter to the Editor: Disclosure and donor‐conceived children' (2017) 32 Human Reproduction 1532; Jadva et al, above n 5. 120 Scott‐Jones, above n 95. 121 Jadva et al, above n 5; Riley, above n 87, 66, citing Damien Adam, a donor‐conceived person. 122 Blyth et al, above n 80; Johnson, Bourne and Hammarberg, above n 114. 123 Blyth et al, above n 80. 124 Ibid. 125 Beeson, Jennings and Kramer, above n 79, 2418.
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Chapter Six – Children’s Perspectives donor conception and/or surrogacy into their family narratives with ease and, often, indifference, particularly when told from an early age.’126 Some donor‐conceived people expressed anger concerning their parents’ decision to withhold information about their conception, while nonetheless emphasising their secure relationship with non‐genetic parents. One respondent remarked, ‘[t]he man who raised me is still my dad, but I’m pissed off ... I’m missing half of my genetic medical history’.127 Likewise, one of the donor‐conceived people featured on the website of the Victorian Assisted Reproductive Treatment Authority, Rose, stated that when she discovered that her sperm donor had died shortly after they got in contact, she felt ‘angry at the “system” which had produced me’:
It is not fair and has never been fair for donor conception to be anonymous. Why should I have to spend thousands of hours to find him, only to lose him before we could meet? The more I learn about him the more I realise how much we had in common.128
Accounts like this indicate that deprivation of origins information can lead to a relational loss – loss of an opportunity to possibly connect with someone who shared a genetic heritage as well as loss of trust that parents will share information that rightfully ‘belongs’ to their child. It is in response to similar concerns that Victoria has now implemented a retrospective opening of donor conception records, enabling all donor‐ conceived people over 18 (or whom the counsellor considers to be sufficiently mature or who have parental consent) to access records surrounding their conception, including identifying details of any gamete donor.129 Research with adopted children and adults indicates that it is not just the timing, but also the context of disclosure of parentage, that affects how well the adopted person adjusts. Learning about one’s parentage during ‘an emotionally charged crisis’ appears
126 Blake et al, ‘Families Created by ART’ above n 9, 265. 127 Beeson, Jennings and Kramer, above n 79, 2419. 128 Victorian Assisted Reproductive Treatment Authority, How I found and lost my donor
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Chapter Six – Children’s Perspectives to be particularly painful for adolescents.130 When we extrapolate this research to the situation of misattributed parentage children, it would suggest that children may cope better with news regarding misattributed parentage if it were disclosed early in life, and not in the context of adolescence, or a family crisis, and if it did not automatically threaten their legal parentage. In the donor conception context, biotruth rhetoric and beliefs have been correlated with parents deciding not to disclose to their children that they are donor conceived, inadvertedly undermining the trust between donor‐conceived children and their parents. In Monica Konrad’s ethnographic study of egg donors and recipients in the UK, she found that the parents who emphasised the importance of social parenting over genetic parentage and physical resemblance were likely to be the ones planning to disclose to their children the fact of donor conception.131 The parents who rated biogenetic relatedness as highly significant were much less comfortable with the idea of disclosing to children that they were donor‐conceived. Carol Smart suggests that
… parents who felt that biogenetics created an intangible bond were fearful that the discovery of such relatedness would weaken their child’s bond with them and thus would be the harbinger of loss.132
The rhetoric of genetic parentage as ‘true’ parentage makes it emotionally risky for parents of donor‐conceived and adopted children to disclose information about their origins, even with the protection of exceptions to the ‘borne or begotten’ common law definition of ‘parent’. For parents with doubts regarding a child’s paternity, disclosure is doubly risky – in terms of both the emotional risks to relationships and the legal risks to the child’s legal kinship identity, stable care arrangements and economic support. The bundling together of origins information with legal kinship identity, default parental responsibility and economic responsibility therefore increases the odds that paternity
130 See research by Baran and Pannor A Baran and R Pannor, Lethal Secrets: The Shocking Consequences of Unsolved Problems of Artifical Insemination (Warner, 1989) cited in Scott‐Jones, above n 95. 131 Carol Smart, 'Family Secrets: Law and Understandings of Openness in Everyday Relationships' (2009) 38 Journal of Social Policy 551, 562; Monica Konrad, Nameless Relations: Anonymity, Melanesia and Reproductive Gift Exchange Between British Ova Donors and Recipients (Berghahn Books, 2005). 132 Smart, 'Family Secrets: Law and Understandings of Openness in Everyday Relationships', above n 131.
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C Evidence from Research on children’s participation in family law
With the rise of the children’s rights movement, and particularly since the Convention on the Rights of the Child was ratified in 1990,133 Australian family law processes have moved in the direction of hearing children’s perspectives on decisions which affect them – at least in regard to where they live, who they spend time with, and who makes decisions for them. This section considers four key rationales for this shift which, it is argued, apply equally to hearing children’s perspectives in decisions regarding their legal parentage.
1 Children want to be heard
In the family law context, there is ample evidence indicating that many children want to have a say in decisions which affect them.134 For example, Sara, a 21‐year‐old woman whose parents’ dispute about her care had been heard as a family law matter in the UK while she was a child, remarked:
the child is not a parcel to be labelled and sent to wherever someone else decides. Each child is a human being and has some right to be listened to at such an important turning point in their lives. They need to feel heard and empowered. They also need to know that they matter and are important.135
While Sara’s family law matter did not appear to touch directly on the question of her legal parentage, her analogy about children being treated as parcels is a very apt
133 United Nations Convention on the Rights of the Child, Arts 7‐8, 20 November 1989, 1577 UNTS 3 (ratified by Australia 17 December 1990). 134 Chisholm, above n 10; Birnbaum and Saini, above n 7; Bren Neale, 'Dialogues with Children: Children, Divorce and Citizenship' (2002) 9 Childhood 455, 469. Neale notes that children’s wishes regarding involvement in family law proceedings differed based on their experiences with their parents. Children who had experienced neglect or disrespect from a parent were ‘forceful in insisting that children should be able to choose residence and contact arrangements’, whereas children who experienced mutual trust and respect with their parents were happy for their parents to listen to them without any need for court or professional intervention. 135 Quoted in Jennifer E McIntosh, 'Four young people speak about children’s involvement in family court matters' (2009) 15 Journal of Family Studies 98.
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Chapter Six – Children’s Perspectives one for parentage. The biotruth model imagines a child’s legal kinship identity as a denomination of origin akin to a ‘made in Australia’ label. Where that identity does not correspond to the child’s genetic origins, in child support cases, the mother is often treated like a deceitful producer trying to pass off products for something they are not – to the extent that misattributed fathers can claim a refund for child support paid in respect of that child.136 If family law is to treat children like persons, with some level of ‘agentive identity’ rather than parcels,137 then it needs to create spaces in which children’s voices can be heard, including on the question of their legal parentage. Children want a voice for diverse reasons, as shown in Rachel Birnbaum and Michael Saini’s systematic synthesis of twenty years of research on children’s participation in custody disputes. Some expressed this desire in democratic terms (eg feeling it was fair for them to ‘have a say’), while others expressed it in terms of rights.138 Many simply wanted ‘recognition rather than equality’ and were able to distinguish between ‘having a voice’ and ‘making a choice’.139 Research with children adopted aged five and above also indicates that children wanted to be consulted with and heard, ‘both in respect to their match with a family and the adoption process’.140 Given the significance that legal parentage holds, it seems likely that children would also want a say on any potential changes to their own legal parentage.
2 Children are capable of participating meaningfully in decisions
A central issue in discussions about children’s participation in family law determinations is their capacity to participate meaningfully. The traditional approach has tended to draw on Piaget’s theories that children’s cognitive development advances in stages (usually linked to chronological age), based on the child’s own interactions with
136 See Child Support (Assessment) Act 1989 (Cth), s 143. 137 Riley, ‘Identity and Genetic Origins’, above n 5. 138 Birnbaum and Saini, above n 7. 139 Carol Smart, 'Equal shares: rights for fathers or recognition for children?' (2004) 24(4) Critical Social Policy 484, 499; Holt, above n 17; Birnbaum and Saini, above n 7. 140 Elizabeth Cox, Lynne Moggach and Tina Smith, 'Participation And Decision Making In Older Age Adoption' (2007) 19 Developing Practice 16.
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Chapter Six – Children’s Perspectives natural phenomena and their independent reasoning processes.141 This traditional approach, however, has been broadly critiqued, for example, within a UNICEF report on the ‘Evolving Capacities of the Child’:
[A ]universal, prescriptive and deterministic conception of a linear process of child development applicable to all children is inadequate to reflect the complex realities of children’s acquisition of competencies.142
This critique builds on the work of sociocultural theorists, such as Vygotsky, who suggest that children’s capacity to articulate is not fully captured by their independent performance – rather, it can be much greater (and result in further learning and development) if ‘scaffolded’ by more competent others.143 In this view, children’s participation plays an important role in their development and that their capacity to contribute depends to a significant extent to the ‘skill of the adult engaged in ascertaining the child’s views’.144 Given that children’s capacity may depend on the type of involvement and the support offered to them, it may be that many children can provide useful information about who they regard and rely on as their parents, even if they have trouble expressing their wishes about with whom they wish to live and spend time. Identifying whom they regard and rely on as parents requires description and memory rather than forethought, judgment and prediction, and may be a much simpler cognitive task.145 Unlike children’s preferences regarding their care, there is evidence that children’s perceptions about who is a parent and who is and is not part of their family remain remarkably stable, even
141 Jean Piaget, Judgment and Reasoning in the Child (Kegan Paul, 1928) cited in Andrea Rigg and Jan Pryor, 'Children’s Perceptions of Families: What Do They Really Think?' (2007) 21 Children & Society 17. For example, section 60CC(3)(a) of the Family Law Act (1975) specifies that ‘the child's maturity or level of understanding’ should be considered when the court is considering ‘the weight it should give to the child's views’. 142 Gerison Lansdown, 'The Evolving Capacities of the Child' Innocenti Research Centre, United Nations Children’s Fund (UNICEF). 143 Nicola Taylor, Pauline Tapp and Mark Henaghan, 'Respecting Children’s Participation in Family Law Proceedings' (2007) 15 International Journal of Children’s Rights 61, 66 citing L S Vygotsky, Mind in Society: The Development of Higher Psychological Processes, (Harvard UP, 1978, Cambridge Massachusetts). 144 Nicola Taylor, Pauline Tapp and Mark Henaghan, above n 143. 145 Further research would be required to establish whether this is indeed the case for children giving their perspectives within family law disputes.
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Chapter Six – Children’s Perspectives for young children.146 We have little data about how these perceptions may change when there is a discovery of disputed or misattributed paternity. However, the experiences of late‐discovery adoptees and donor‐conceived people (discussed above) indicate that feelings of trauma, shock and betrayal are common.147 Because gauging children’s perceptions of their parentage is a simpler question, it may be possible to take children’s perspectives into account at a younger age than for their preferences regarding their care arrangements and living situation (and therefore parenting orders). The competence of the particular child is already crucial in shaping parents’ ability to make decisions for children, with Australian courts supporting the UK position that the
… parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.148
Whereas ‘Gillick competence’ is required for children consenting to medical treatment, children may be capable of expressing their understanding of their family relationships and identifying who they regard and rely on as parents at a much younger age. Certainly, research with ‘family mapping’ indicates that children as young as four may be able to coherently communicate their perceptions of whom they regard and rely on as parents.149 Children may even be capable of expressing such perceptions even when they are non‐verbal – for example, by observing their attachment behaviours. Research on children’s psychological attachments to adults indicates that particular social processes (primarily interactions between a child and a carer when the child is distressed or vulnerable), can, when repeated over a significant period of time, create a social
146 Roe et al, above n 9. 147 Riley, ‘Identity and Genetic Origins’ above n 5. 148 Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 186 (UK House of Lords). Affirmed in Australia by the High Court in Department of Health & Community Services v JWB & SMB ("Marion's Case") [1992] HCA 15 at [19] per Mason CJ, Dawson, Toohey and Gaudron JJ. 149 Holt, above n 17; Wendy Sturgess, Judy Dunn and Lisa Davies, 'Young children’s perceptions of their relationships with family members: Links with family setting, friendships, and adjustment' (2001) 25 International Journal of Behavioral Development 521, 528.
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Chapter Six – Children’s Perspectives relationship (an ‘attachment relationship’).150 Mary Ainsworth’s work observing mother‐child interactions indicated that where the carer is available and generally responds with sensitivity to the child’s attachment signals (eg crying, following, seeking), then a secure relationship with that carer may be established, so that the child can treat the parent as a ‘secure base’ from which to explore.151 Not all attachment relationships are secure, however, and children may be strongly (but insecurely) attached to carers who are negligent or abusive, and attachment relationships may be interrupted by perpetrators of family violence.152 Attachment is no longer a purely psychological theory, however, with neurobiologists observing that attachment behaviours are associated with reciprocal responses within two main neural systems: the dopaminergic rewards‐processing system, and the oxytocin‐ergic system – mechanisms which attachment behaviours share with addictive behaviours.153 Attachment relationships may or may not coincide with biogenetic relatedness:
A secure attachment to mother is no guarantee of a secure attachment to father or caregiver at day care. This shows that a secure attachment does not depend on a biological tie with the attachment figure or on the provision of food or physical care. Sensitive interactions cause a child to become securely attached. As a child develops, the separate attachment relationships he has built up with the different
150 Peter Fonagy et al, 'Why are we interested in attachments?' in Paul Holmes and Steve Farnfield (eds), The Routledge Handbook of Attachment: Theory (Routledge, 2014) 31, 31. 151 Mary D Salter Ainsworth, 'Object Relations, Dependency and Attachment: A Theoretical Review of the Infant‐Mother Relationship' (Pt 40) (1969) Child Development 969. Ainsworth credited her mentor at the University of Toronto, William Blatz, with the development of this notion of a ‘secure base’: Robert Karen, Becoming Attached: First Relationships and How they Shape our Capacity to Love (Oxford University Press, 1998), 129‐130. 152 Pamela C Alexander, 'Childhood Trauma, Attachment, and Abuse by Multiple Partners' (2009 ) 1 Psychological Trauma: Theory, Research, Practice, and Policy 78, 79; Leesa Hooker, Rae Rae Kaspiew and Angela Taft, Domestic and family violence and parenting: Mixed methods insights into impact and support needs: State of knowledge paper (Australia's National Research Organisation for Women's Safety, 2016) 2, 15, 17; Cathy Humphreys, Ravi K Thiara and Agnes Skamballis, 'Readiness to Change: Mother‐Child Relationship and Domestic Violence Intervention' (2011) 41 British Journal of Social Work 166. 153 Fonagy et al, above n 150, 35.
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caregivers meld into one integrated cognitive representation of attachment, which becomes apparent through the Adult Attachment Interview.154
Each of these attachment relationships exist both as a series of real‐world interactions between child and carer, and as an internal working model of the relationship within the child’s mind, built up from ‘the infant’s experience of repeated interactions’ with that carer and constantly recalibrated by ongoing interactions with the carer.155 These social processes may begin during pregnancy with the gestating mother.156 A gestational connection between parent and child may be more important to children’s wellbeing than a genetic link.157 Whether this is because children’s attachments are affected by separation from the person with whom they had an in‐ utero attachment or due to other factors is still uncertain. Attachment research therefore provides a number of well‐tested methodologies for ascertaining the existence and quality of attachment relationships between particular children and adults – and could function as one way for children to express their perspectives on who they rely on as parents. Observations of attachment behaviours already form part of the practices of Family Report Writers as discussed below.
3 Better decisions can result if children are consulted
Courts are able to make better decisions (ie more effective decisions which better meet the child’s needs) where they allow for children’s participation for two
154 Lenny van Rosmalen, Marinus van IJzendoorn and Marian Bakermans‐Kranenburg, 'ABC + D of attachment theory: The Strange Situation Procedure as the gold standard of attachment assessment' in Paul Holmes and Steve Farnfield (eds), The Routledge Handbook of Attachment: Theory (Routledge, 2014) 11‐30, 23. 155 Jonathan Green et al, 'A new method of evaluating attachment representations in young school‐age children: The Manchester Child Attachment Story Task' (2000) 2 Attachment & Human Development 48, 48. 156 Fonagy et al, above n 150; Bronia Arnott and Elizabeth Meins, 'Continuity in mind‐mindedness from pregnancy to the first year of life' (2008) 31 Infant Behavior and Development 647. 157 Golombok et al, 'Children Conceived by Gamete Donation: Psychological Adjustment and Mother‐Child Relationships at Age 7' (2011 ) 25 Journal of Family Psychology 230; Susan Golombok and Fiona Tasker, 'Socioemotional Development in Changing Families' (2015) 3 Handbook of Child Psychology and Developmental Science.
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Chapter Six – Children’s Perspectives reasons. The first is that children are the best people to enlighten the court on their interests and their understanding of their family and how it functions. Second, building on the socio‐cultural research mentioned above, children can be empowered when they can participate in decisions affecting them, and this empowerment is in itself good for children, while making it more likely that children will accept and help implement the decision.158 The enlightenment approach suggests that children’s perspectives may be a better guide to their best interests than assumptions by judges, legislators or family reporters about what is best for children in general or for that child in particular. Involving children in decision‐making has also been correlated with reductions in family conflict – an aspect which may be particularly important where a discovery of misattributed paternity may have sparked feelings of betrayal and emasculation for the father.159 Hearing children’s perceptions of the significance of their relationships with key adults (either directly, or by observing their interactions with those adults) may result in decisions which better serve the child’s wellbeing because the quality of a young child’s attachment relationships contributes towards the child’s social and emotional development. Many Family Reporters already consider the nature and quality of a child’s attachments when providing a report to the court about the child’s views and best interests, but only for the purpose of determining parenting orders, not for any orders regarding the child’s legal parentage. Attachment is recognised as relevant to parenting order determinations because preserving healthy attachment relationships via day‐to‐ day care, residence and parenting is beneficial for children’s development and wellbeing. Recognition of a psychological parent as a legal parent may, however, also be important for securing such relationships. Repeated interactions with a carer when the child is distressed or needing soothing enable the child and carer to develop an attachment relationship, which in turn shapes the child’s (and eventual adult’s) attachment style. This attachment style is in
158 Taylor, Tapp and Henaghan, above n 143. 159 Jennifer McIntosh et al, Post‐separation parenting arrangements and developmental outcomes for infants and children (Attorney‐General’s Department, 2010).
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Chapter Six – Children’s Perspectives turn a key predictor of mental health difficulties. Attachment research has developed specific tools to study each of these components in the attachment process.160 For example, Palitsky et al concluded that
even after adjusting for sociodemographic variables, other mental disorders, childhood adversity, and each of the other attachment styles, an insecure adult attachment style almost universally was associated with a higher likelihood of having a mood or anxiety disorder.161
These connections – between the social processes of responding to a child and the social relationship of attachment, and between attachment relationships and children’s psychological development – have particular implications for family law. In regard to the first connection, attachment research indicates that social parent‐child relationships are psychologically significant to children because of a sustained pattern of interaction and care, rather than because of biogenetic relatedness. The second connection suggested by attachment research – that the quality of children’s attachment relationships shape the child’s psychological development – means that the quality of attachment relationships has significant impacts on a child’s present and future wellbeing – making it vital that family law does what it can to maintain and protect secure attachment relationships for children. Attachment arises from care and the repeated interactions between carer and child, but the impact of secure attachment relationships on children’s wellbeing goes further than just day to day care – it also provides useful information for decisions about the child’s legal kinship identity. A retrospective change to a child’s legal identity may shake what was a secure and beneficial parenting relationship. Where the best interests model tends to frame children as entirely dependent on adults, research with children themselves has found that most children understand the parent‐child relationship as
160 For example, child and carer sensitivity observations to examine the social process of interactions between carer and child, the Strange Situation Procedure to assess the existence and quality of an attachment relationship between carer and young child; and the Adult Attachment Interview or the Attachment Self‐Report to analyse the attachment style of adults. Daniel Palitsky et al, 'The Association Between Adult Attachment Style, Mental Disorders, and Suicidality: Findings From a Population‐Based Study' (2013) 201 The Journal of Nervous and Mental Disease 579, 580. 161 Ibid 583.
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Chapter Six – Children’s Perspectives one of interdependence rather than dependence.162 To allow a parent to unilaterally terminate the legal parent‐child relationship is a rebuke to children’s understandings of parent‐child relationships as mutual and reciprocal. Arguments about empowerment suggest that giving children a say in their care arrangements helps them to weather parental separation with some ‘feelings of mastery and control’ rather than becoming ‘disempowered victims of the circumstances’.163 There is evidence that the process of consulting children can in itself ease their adjustment through family changes.164 For example, Karl‐Franz Kaltenborn’s longitudinal study in Germany examined how psychological and care outcomes for children were affected when their attachments and preferences were taken into account in decision‐making about with whom they lived and spent time. For the children studied by Kaltenborn,
taking into account the child's attachment and relationship preferences and residence wishes provides a residential arrangement according to the child's needs and welfare, while ignoring these causes a difficult situation which leads to more or less successful adjustment efforts and processes..., trajectories of suffering..., and/or later changes of the living situation.165
Further research is required to assess whether similar risks to children’s wellbeing are present when children’s attachments and perspectives are ignored in determinations concerning children’s legal kinship identities and access to origins information. This ‘empowerment’ view is in sharp contrast to more protectionist views that participation in decisions may be harmful for children. Much of the concern raised about hearing children’s perspectives in family law centres on the perceived risks to children of feeling divided loyalties and/or feeling responsible for making decisions which may
162 James, above n 8. 163 Holt, above n 17. See also Bagshaw, above n 7. 164 Ibid. 165 Karl‐Franz Kaltenborn, 'Individualization, Family Transitions and Children's Agency' (2001) 8(4) Childhood 463, 483. Kaltenborn’s study does not address, however, the situation where the child’s wishes and the court’s assessment of the child’s best interests point in opposite directions.
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Chapter Six – Children’s Perspectives affect their relationships with parents or siblings.166 These concerns are addressed within the existing mechanisms used for children’s participation in parenting order matters (discussed in Part II below). These mechanisms make it clear that children are not being asked to choose, but rather, invited to provide their perceptions of how their family works, whom they rely on, and what is important to them in future care and decision‐making arrangements. The trial conducted by McIntosh et al compared outcomes for families who had participated in child‐inclusive mediation (where a specialist consulted with the children and information gathered was then considered by the parents during mediations) with those who engaged in more traditional child‐focused mediation (where children were not directly involved, but the mediator actively supported parents to consider their children’s needs).167 Helping parents to hear children’s voices not only made for more durable and developmentally sensitive agreements between the parents, but also helped separated parents repair the relationship between them and to become more emotionally available to their child.168 These objectives are just as important when determining a child’s legal parentage.
4 International law and understandings of children as citizens require consultation with the children concerned
The notion that children have a right to participate in judicial or administrative decisions affecting them is supported not only by the research on the sociology of childhood discussed above, but also by international law. The Convention on the Rights of the Child, to which Australia has been a signatory since 1990 includes in Article 12(1)(2) an obligation on the part of decision makers to take into account the views and preferences of children.169 This obligation is based on an understanding of each child as
166 Parkinson, Cashmore and Single, above n 7; Parkinson and Cashmore, above n 7; Chisholm, above n 10. 167 Jennifer E McIntosh et al, 'Child‐focused and child‐inclusive divorce mediation: comparative outcomes from a prospective study of postseparation adjustment' (2008) 46 Family Court Review 105. 168 Ibid 113. 169 Convention on the Rights of the Child opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990); John Tobin, The Convention on the Rights of the Child: The Rights and Best
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Chapter Six – Children’s Perspectives a ‘person with expressive capacities and potential allowing him or her to actively participate in the choices concerning him or her’.170 This obligation to hear children’s perspectives on decisions that affect them is reflected in s 60CC(3)(a) of the Family Law Act, which requires judges determining what is in the best interests of the child to consider
… any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views[.]
These international obligations to hear children’s perspectives build on the notion that a person’s right to be heard on decisions which affect them is a key aspect of legal personhood – of being treated and respected as a legal subject, rather than an object of the legal interests of others or a ‘tool to attain the truth’.171 Martha Minow noted in 1990 that ‘including children as participants alters their status in the community, from things or outsiders to members…’172 While an in‐depth analysis of the relevant international law is beyond the scope of this thesis, it is important to note that both the Family Law Act and judges considering parentage disputed under the Family Law Act have assumed that the Article 12 obligation does not apply to determinations of legal parentage. Because legal parentage bundles the factual question of a child’s biogenetic origins with their legal kinship identity, judges have treated legal parentage as a whole as a question of fact rather than law, and therefore one in which children’s perspectives are irrelevant. In some jurisdictions, however, these international obligations have been interpreted to apply to determinations of (the local equivalent to) legal parentage. For example, in Italy, any
Interests of Children Conceived Through Assisted Reproduction, Occasional Paper (Victorian Law Reform Commission, 2004). 170 A Dell’Antonio, La Partecipazione del minore alla sua tutela (Giuffre, Milan, 2001).Translated and cited in Roberta Bosisio, 'Children’s Right to Be Heard: What Children Think' (2012) 20 International Journal of Children’s Rights 141, 143. 171 Ibid 149. 172 Martha Minow, Making all the difference: Inclusion, Exclusion and American Law (Cornell University Press, 1990) 297; Bosisio, above n 170.
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Chapter Six – Children’s Perspectives application for judicial recognition of biological parenthood for a young person over sixteen years of age requires the consent of the young person.173 Decisions regarding a child’s legal parentage are likely to fit into the category of ‘judicial and administrative proceedings affecting the child’. As such, Article 12 of the Convention on the Rights of the Child requires that they include an opportunity for the child to be heard ‘either directly or through a representative or an appropriate body’.174 Failing to provide space to hear children’s perspectives on decisions about their legal parentage would arguably put Australia in breach of the Convention. When we draw together data from the misattributed paternity cases, along with research with donor‐conceived and adopted children, and children within the family law system, these distinct rationales for giving children the opportunity to participate in determinations of their legal kinship identity and relating to access to their origins information cohere into one larger rationale. Failing to allow space for children’s perspectives causes harm to children, and while creating that space creates further complexities in family law, it is a crucial task in ensuring family law outcomes address children’s wellbeing and respect them as persons.
XIV EXISTING MECHANISMS TO HEAR CHILDREN’S VOICES ON PARENTING ORDER MATTERS
This section outlines the existing mechanisms within the Australian family court process to hear children’s perspectives on parenting order questions, along with critiques of those mechanisms, in order to assess their suitability for hearing children’s voices on their legal parentage. In the parenting orders context, children’s input can be considered when parties are negotiating consent orders and within proceedings for parenting orders. The two mechanisms by which children’s perspectives may be heard by the court are family reports and Independent Children’s Lawyers (ICLs). Both types of
173 Bosisio, above n 170. 174 Convention on the Rights of the Child opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
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Chapter Six – Children’s Perspectives orders are regularly made by the Australian family courts for parenting order matters, and Family Report Writers and ICLs are arranged and funded by the court.
A Family Dispute Resolution
Proceedings cannot be lodged in any family law matter involving children (excluding those involving allegations of family violence, child abuse or extremely urgent matters) unless parties have attended family dispute resolution and have made a ‘genuine effort’ to resolve the dispute.175 Many family dispute resolution (FDR) practitioners seek to include chidlren’s perspectives – for example via the Kids’ Talk initiative within Victorian Legal Aid cases.176 In a similar vein, the child centred continuum model recently developed by Yasenik and Graham helps assess and build parent readiness to hear the child’s concerns (via the mediator).177
B Family Reports
Under s 62G of the Family Law Act, a court may ‘direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable’.178 A Family Report is an information‐gathering process arranged by the Family Court whereby a professional – usually a psychologist or social worker – meets with the child, parents and any other relevant parties, observes their relationship behaviour and hears what they may have to say about their relationships, future arrangements or the dispute.179 A Family Report usually also includes the reporter’s
175 Family Law Act 1975 (Cth) s 60I. 176 Michele Harris, An Evaluation of Victoria Legal Aid’s Kids Talk Program 2007–2010 (Victoria Legal Aid, 2012). 177 Lorri A Yasenik and Jon M Graham, 'The Continuum of Including Children in ADR Processes: A Child‐ Centered Continuum Model' (2016) 54(2) Family Court Review 186. 178 Family Law Act 1975 (Cth) s 62G(2). 179 Family Court of Australia, Federal Circuit Court and Family Court of Western Australia, 'Australian Standards of Practice for Family Assessments and Reporting' 2 February 2015).
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Chapter Six – Children’s Perspectives recommendations based on their professional opinion as to what arrangements would be in the child’s best interests.180 A family consultant’s consultations with children for parenting order determinations start from the evidence‐based understanding that most children want to be heard and to have their views taken into account, but do not want responsibility for making the decision.181 Rather, the family consultant seeks to understand the child’s views about their social world – hearing about the relationships which the child values and how these relationships function in terms of the child’s needs. The Family Report therefore provides insight from the child’s perspective on the relational reality of their relationship with a parent – and could provide valuable evidence to inform decisions about the child’s legal kinship identity and needs regarding origins information as well as their needs as to parenting orders.
C Independent Children’s Lawyer (ICL)
Where an ICL is appointed, their task is not to act as a child’s representative implementing their instructions, but to ‘represent and promote the best interests of a child’.182 Nonetheless, the family courts’ guidelines state that, ‘[t]he best interests of the child will ordinarily be served by the ICL enabling the child to be involved in decision‐ making about the proceedings’.183 A 2014 study by the Australian Institute of Family Studies found two main divergent approaches by ICLs:
Some ICLs, particularly in Queensland, Western Australia and South Australia, adopt an approach in which this is seen as a collaborative function, with family consultants (Queensland) or single experts (Western Australia and South Australia) acting primarily as the conduit for ascertaining and interpreting children’s/young people’s views, facilitated by the ICL. Under the other approach, consultation occurs as part of the ICL’s direct engagement with children and young people, and
180 Ibid 21‐27. 181 Bosisio, above n 170. 182 'Family Court of Australia, Family Court of Western Australia and the Federal Circuit Court, Guidelines for Independent Children's Lawyer (29 May 2013)', 1. 183 Ibid 2.
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this may occur in parallel with the children/young people being seen by family consultants/single experts.184
Particularly within the first approach, common practice is for the ICL not to meet with the child, a practice which research with parents and children has been found to result in ‘disappointment and unmet expectations’.185 Nicola Ross’ qualitative study talking to ICLs also found two distinct approaches. Some ICLs saw their role solely as a ‘responsible lawyer’ as ‘counsel assisting the court to retain a focus on children’s best interests’. 186 Others combined this understanding with viewing their role as a relational one which required them to relate to children and support their ‘involvement in proceedings’.187 Overall, Ross found that ICLs who took a relational approach were ‘more likely to facilitate children’s participation and are more congruent with what children say they need from those who represent their interests’.188 Ross’ study may signal that Australian ICLs in the family courts need better clarity on their role and the relative emphasis on the child’s participation and their best interests. That was certainly the message from recent research conducted by the Australian Institute of Family Studies which consulted with children and young people involved with the family law system.189 Of the children and young people interviewed who had encountered independent children's lawyers or family consultants, only around half indicated that their views were acknowledged.190 These children and young people wanted more than just acknowledgment – a ‘very prominent theme’ in their responses was concerns about family professionals (such as family consultants and ICLs) failing ‘to listen effectively and engage with the child and young person’s opinions and
184 Rae Kaspiew et al, Independent Children’s Lawyers Study, Final report (Australian Institute of Family Studies, 2 ed, 2014) 146. 185 Ibid 147. 186 Nicola Ross, 'Independent Children’s Lawyers: Relational approaches to children’s representation' (2012) 26 Australian Journal of Family Law 220, 225. 187 Ibid. 188 Ibid 239. 189 Rachel Carson et al, Children and young people in separated families: Family law system experiences and needs (Australian Institute of Family Studies, 2018). 190 Ibid viii.
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Chapter Six – Children’s Perspectives perspectives’.191 Many participants expressed frustration that family law professionals spoke down to them, gave greater weight to the views of parents and other adults, and disregarded children’s knowledge of their own family and living situations.192 A preferable approach may be that taken in New Zealand. There, the Care of Children Act 2004 (NZ) creates dual obligations to give the child’s best interests paramount consideration and to accord the child the same rights as the parties ‘to participate in the Court process and to assist the Court to obtain information about the child’s perspective of their welfare and best interests’.193 To meet these obligations, the court is required to appoint a lawyer for the child unless it is satisfied that appointing one would ‘serve no useful purpose’.194 If there is conflict between these two duties (ie the child’s wishes may be at odds with their welfare) – the Court may appoint another lawyer to make submissions and present evidence as to the child’s welfare. This would enable the lawyer for the child to continue acting in a relational role, as Ross might describe it, to facilitate the child’s participation and to advocate for the child’s views. The VLRC has recently recommended that ICLs be appointed for all children in the adoption process, and that, unless the child is under 10 or is not mature enough to give instructions, the lawyer act as the child’s direct representative, as is the case with ICLs in the Children’s Court.195 If children are to be consulted regarding a change to their legal parentage via adoption, then this is a strong indication that they may also need a voice when changes to their legal parentage are contemplated due to new information about their genetic origins.
D Critiques of Existing Mechanisms
Significant debate has considered the relative merits of these mechanisms to hear children’s perspectives and the varying emphasis given to children’s best interests,
191 Ibid 79. 192 Ibid 84. 193 Taylor, Tapp and Henaghan, above n 143. 194 Ibid 70. 195 Victorian Law Reform Commission, (2017) xxii.
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Chapter Six – Children’s Perspectives their agency and their rights.196 This section considers how these critiques may be relevant in extending some or all of these mechanisms to give children a say on the origins information and legal kinship identity aspects of their legal parentage. Family law’s relationship with children in common law countries has historically been framed within what Stephanie Holt calls a ‘protectionist agenda’ – in which children are to be ‘protected rather than empowered’.197 ‘Children’s rights’, therefore, have primarily been incorporated into Australian family law via the best interests model. Holt suggests there is a friction in the literature on children’s rights between those taking a protectionist/welfare approach – that involving children can be harmful to them – and those taking a more liberalist view which sees involving children as essential to figuring out what may be in their best interests.198 Those taking a protectionist stance tend to frame children’s welfare and their participation as at odds with one another.199 They raise two main concerns about hearing from children in family law matters. They argue, first, that hearing from children exposes them to pressure from parents, as well as the responsibility of adult decision‐making, and second, that it can be difficult to distinguish the child’s authentic voice from a ventriloquist parent.200 For example, US psychologist, Richard Warshak suggests that ‘the more weight accorded children’s stated preferences, the greater the risk of children being manipulated or pressured by parents’.201 Warshak therefore prefers to test children’s perspectives against what he calls the ‘collective voice of children’ ascertained via research, and he urges caution when a child’s expressed views diverge from that of their
196 See, for example, Ross, above n 186; Bala et al, ‘Children’s Voices’ above n 10; Richard A Warshak, 'Payoffs and Pitfalls of Listening to Children' (2003) 52 Family Relations 373; Hunter, above n 10. 197 Holt, above n 17; Greg Mantle et al, 'Whose Wishes and Feelings? Children’s Autonomy and Parental Influence in Family Court Enquiries' (2007) 37 British Journal of Social Work, 785, 785. It must be noted here, however, that each jurisdiction takes a different approach to incorporating children’s voices into court decision‐making. See, for example, Jan Ewing et al, 'Children's Voices: Centre‐Stage or Sidelined in out‐of‐Court Dispute Resolution in England and Wales' (2015) 27 Child and Family Law Quarterly 43 198 Holt, above n 17. 199 Smart, 'From children's shoes to children's voices', above n 11. 200 Kirk Weir, 'High‐conflict contact disputes : the Evidence of extreme unreliability of some children's ascertainable wishes and feelings ' (2011) 49 Family Court Review 788; Parkinson and Cashmore, above n 7 ; Warshak, above n 201 Warshak, above n 196.
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Chapter Six – Children’s Perspectives peers (as gauged by research).202 In assessing the ‘collective voice of children’ however, Warshak constructs a series of assumptions about children’s preferences – for example, stating that ‘we have no reason to believe that most children would want to be deprived of the chance to stay overnight with each parent’.203 This, as Warshak acknowledges, ‘stretches the concept of children's voice’ – to such an extent that it is indistinguishable from an assessment of children’s best interests in a generic sense.204 Warshak’s approach highlights the tension here between the voice of the particular child whose legal parentage is disputed, and the voices of children more generally. Taking a generic approach to ‘the voice of the child’ can work to overwrite the voice of the particular child involved in the dispute with research on children’s voices or with the views of the decision‐maker or researcher on the likely views of children.205 As a result, welfare sneaks in by the back door, despite the language about children’s voices, and ‘may prevent a child ever being heard’.206 A number of researchers have developed a strong critique of the protectionist approach to children’s voices, arguing that it positions children as ‘subordinate to adults, vulnerable and in need of protection’.207 Moreover, the notions of competence used in many jurisdictions draw from out‐dated Piagetian understandings of children’s
202 Ibid 377. 203 Ibid 380. 204 Ibid 377. 205 See the approach taken by Warshak, discussed above. Ibid. 206 Holt, above n 17; Neale, above n 134. 207 Holt, above n 17. See, for example, Neale, above n 134; Jan Pryor and Bryan Rodgers, Children in Changing Families: Life after parent separation (Blackwell, 2001).
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Chapter Six – Children’s Perspectives competence as developing in stages universal to most children, ignoring more recent research.208 James et al have critiqued the Piagetian model, arguing that it fails to capture the ways in which children co‐create family life and their own kinship identities.209 As Bren Neale observes, ‘the child of legal discourse has become a somewhat generalized, theoretical child rather than a real, embodied, biologically unique and socially differentiated child’.210 This critique suggests that the protectionist approach functions as an ideology of childhood, or in Barbara Baird’s terms, ‘child fundamentalism’, constituting the child ‘as a fixed and absolute category’.211 The difficulty of course is that law by its very function deals in abstract categories. Chapman et al suggest that the idealised figure of the child can work to marginalise the actual children involved, so that ‘while “the child” is present, the children remain absent’.212 Hearing directly from the child(ren) at the heart of a parentage dispute offers a way out of the debates about what is ‘good for’ children in general. This alternative, ‘liberalist’ view does not mean handing over decisions to children. Rather, it is about ‘listening and respect – the right to a conversation, as opposed to self‐determination.’213 By extending the space for hearing children’s perspectives to include questions of legal parentage, it may be that ‘children can be engaged with as partners in the building of
208 Tisdall gives the examples of the interpretation of ‘age and maturity’ in Scottish family law proceedings and the ways in which ‘capacity’ is to be interpreted within the United Nations Convention on the Rights of the Child. The right of the child to be heard, General Comment No. 12 (2009), UN CRC, 51st session, UN Doc CRC/C/GC/12 (1 July 2009). E Kay M Tisdall, 'Challenging Competency and Capacity? Due Weight to Children’s Views in Family Law Proceedings' (2018) 26 International Journal of Children’s Rights 159, 176. 209 James, James and McNamee, above n 18. 210 Neale, above n 134. 211 Barbara Baird, 'Child politics, feminist analyses' (2008) 23 Australian Feminist Studies 291, 293. 212 Amy Chapman and Sue Saltmarsh, 'The politics of Normative Childhoods and Non‐Normative Parenting: a response to Cristyn Davies and Kerry Robinson' (2013) 14 Contemporary Issues in Early Childhood 60, 103. 213 Holt, above n 17; James, James and McNamee, above n 18; Allison James, 'From the child's point of view: issues in the social construction of childhood' in Catherine Panter‐Brick (ed), Biosocial Perspectives on Children (Cambridge University Press, 1998) 45.
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Chapter Six – Children’s Perspectives families and adult‐child relationships, rather than always already passive recipients of adults’ decisions’.214 The welfare model, Bren Neale has argued, presents two key obstacles to children’s participation: the notion of ‘childhood incompetence’ (children lack capacity to participate meaningfully), and the notion of ‘family integrity’ (that children ‘are seen to “belong” to their parents rather than to the state’). 215 These presumptions affect not just children’s participation in family law processes, but also their legal personhood, meaning that they are ‘effectively barred from becoming legal actors in their own right’.216 This notion of family integrity may also influence the spaces where children’s participation is currently welcomed. On the questions of care arising in parenting orders – with whom a child lives and spends time – children’s views are welcome. However, on questions of whom the child regards as parents and feels a sense of family belonging with – the legal kinship identity component of legal parentage – there is no space for the child’s perspective. This is because the current model locks legal parentage to origins information and questions around the child’s conception – pre‐dating the child’s existence as a legal or social person. Presumptions of childhood incompetence presuppose a tension between children’s best interests and their participation. Much of this may depend on the type of participation envisaged. Kay Tisdall’s study of children’s participation in family law proceedings in Scotland suggests that their participation is constrained by dominant narratives which expect that children’s participation is formalised, event‐based, outcomes‐oriented, discursive and individualistic – setting a high bar for capacity, and only allowing for children’s participation where they can make best interests decisions in the way that a competent adult would. Tisdall suggests that agency is better
214 Damien W Riggs, What About the Children! Masculinities, Sexualities and Hegemony (Cambridge Scholars Publishing, 2010) 14. 215 Neale, above n 134. 216 Ibid 457.
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Chapter Six – Children’s Perspectives understood as ‘relational and contextual, expressions of it require trust and information and may be emotional as well as rational and change over time’.217 A relational approach to children’s participation would aim to give them ‘sufficient support for their views to be developed, heard and understood’ by using a ‘variety of expressive modes including drawing to be able to elicit different understandings’.218 Currently, many children are excluded from participation because they have only ‘thin’ agency (ie few options and a restrictive context – for example, where the child has experienced family violence).219 Tisdall suggests that these children’s agency can be ‘thickened’ (or ‘scaffolded’ in Taylor et al’s terminology220) with appropriate support. For example, Yasenik and Graham’s Child‐Centred Continuum Model offers strategies for assessing and developing parents’ readiness to hear and respond to their children’s concerns.221 Here, the emergence of ‘supported decision‐ making’ enshrined in the Convention on the Rights of People with Disabilities offers an alternative way of thinking about competence and children’s participation in decisions affecting them.222 Borrowing from the concept of supported decision‐making increasingly used for adults for whom mental capacity is an issue, Aoife Daly argues that children require ‘autonomy support’ in best interests proceedings in terms of ‘non‐ controlling, impartial information and support to form and/or express views and decisions’.223 Where Daly’s concern is about children’s autonomy in family law decisions about whom they live with and spend time, decisions about a child’s legal parentage affect the child’s legal kinship identity. Excluding children from such decisions may be harmful not
217 E Kay M Tisdall, 'Subjects with agency? Children’s participation in family law proceedings' (2016) 38 Journal of Social Welfare and Family Law 362, 375. 218 Ibid. 219 Ibid. 220 Taylor, Tapp and Henaghan, above n 143. 221 Yasenik and Graham, above n 177. 222 Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008). 223 Aoife Daly, 'No Weight for "Due Weight"? A Children's Autonomy Principle in Best Interests Proceedings' (2018) 26 International Journal of Children’s Rights 61, 85.
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Chapter Six – Children’s Perspectives just to their autonomy, but to their dignity as legal subjects who co‐create their identity in relation to others.224 Equally, decisions around genetic parentage testing affect children’s autonomy both in terms of their right to know and their right not to know. As Herring and Foster put it, ‘disclosure of information can impede or even negate the capacity to exercise autonomy’.225 They argue that the right to control access to one’s own personal information extends to ‘access by the persons themselves’:
Both these forms of control are important for maintaining psychological integrity and general well‐being and for fostering relationships. Knowing something about oneself can affect relationships with others and have wider societal consequences. 226
While they may fall short of providing the respect for children’s autonomy advocated by Daly, the existing mechanisms used in the Australian family law system to hear children’s perspectives at least give children the opportunity to be heard. Their use is currently limited, however, to ‘parenting orders’ – excluding decisions regarding genetic parentage testing and legal parentage. As some of the tools already used within child‐inclusive mediation and Family Reports ask questions designed to gather input from children relevant to access to origins information and to the child’s legal kinship identity, it would take little adaption to extend their scope to questions of legal parentage.
XV OBSTACLES TO HEARING CHILDREN ON ACCESS TO ORIGINS INFORMATION AND ON LEGAL KINSHIP IDENTITY
Given these mechanisms within the family law system for children’s participation, what are the obstacles preventing their extension to questions of legal parentage? The next section outlines three obstacles relating to the bundled structure of legal parentage, the biotruth rhetoric which surrounds it, and the way in which legal
224 Here, I use Atkins’ ‘narrative self‐constitution view of identity’ touched on in Chapter One. Kim Atkins, 'Re Alex: Narrative Identity and the Case of Gender Dysphoria' (2005) 14 Griffith Law Review 1. 225 Jonathan Herring and Charles Foster, '“Please Don’t Tell Me”: The Right Not to Know' (2012) 21 Cambridge Quarterly of Healthcare Ethics 20, 28. 226 Ibid.
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Chapter Six – Children’s Perspectives parentage is treated as the domain of parental actions and intentions, giving rise to parental authority (and therefore limits the jurisdiction of family courts to intervene or to hear children’s perspectives). As the VLRC notes, ‘[A] birth certificate does not have one single purpose’.227 A common understanding (particularly among some adoptees and donor‐conceived people228) is that ‘a birth certificate should be a true record of a person’s birth, and therefore, show a child’s biological origins’.229 Yet, as outlined in Chapter One, birth certificates also have important legal functions in terms of establishing the person’s lifelong legal kinship identity, and identifying their legal parents.230 These disparate functions bundled within legal parentage create tension and complicate any involvement of the person themselves in decisions about birth certificates. The VLRC Review reached the conclusion that these legal functions (ie defining a child’s legal kinship identity and identifying their legal parents) were the primary purpose of a birth certificate, but recommended that Victoria introduce optional integrated birth certificates. Such certificates distinguish between the child’s legal parents and their biogenetic parents, therefore fragmenting the bundled functions of legal parentage, at least for adopted persons who opted for an integrated certificate. The campaigns for integrated birth certificates and optional listing of gamete donors on birth certificates or registers of birth indicate that the bundled structure of legal parentage is crumbling for adopted and donor‐conceived children. Each of these measures would give the adopted or donor‐conceived person a say in how their legal
227 Victorian Law Reform Commission, Review of the Adoption Act 1984 (2017) xv. 228 For example, those who contributed to Riley’s study, or who made submissions to the VLRC Review of the Adoption Act. Riley, ‘Identity and Genetic Origins’, above n 5. 229 Victorian Law Reform Commission, Review of the Adoption Act 1984 (2017) xv. 230 A similar distinction was made in a number of submissions to the NSW Inquiry on the inclusion of donor details on birth certificates: Jenni Millbank, Submission No 17 to NSW Legislative Assembly Law and Safety Committee, Inquiry into Inclusion of donor details on the register of births, 20 December 2011; Mr Daniel Stubbs, Director, Inner City Legal Centre. Submission No 25 to NSW Legislative Assembly Law and Safety Committee, Inquiry into Inclusion of donor details on the register of births, 15 December 2011; Dr Sonia Allan. Submission No 13 to NSW Legislative Assembly Law and Safety Committee, Inquiry into Inclusion of donor details on the register of births, 15 December 2011.
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Chapter Six – Children’s Perspectives kinship identity is defined, and how their origins information is accessed.231 In terms of origins information, the opening of adoption and donor gamete records has been driven by adopted and donor‐conceived people (as adults) and therefore by their perspectives. Other children, however, have no say regarding whether and what inquiries are made as to their origins, who can access their origins information, and how that information affects their legal kinship identity. Family members may take a DNA sample surreptitiously and use the results as evidence that parentage is at issue in order to obtain formal genetic parentage testing orders (as in Ames & Ames).232 Because the child’s legal kinship identity and default parental responsibility are locked to their origins information, the court’s decision‐making on legal parentage is limited to the circumstances of the child’s conception, to the exclusion of considering the relational context and hearing from the child themselves. This also means that judges or children have sometimes had to choose between obtaining origins information by ordering genetic tests or keeping the child’s legal kinship identity stable (as in Hadley & Pock, where the court decided against genetic testing in order to retain stability, including stable legal kinship, for the child).233 Unlocking the functions within legal parentage from one another would allow misattributed paternity children to have both a genetic father (recorded on an origins certificate private to the child) and a legal father (presumed to hold parental responsibility, and through whom the child would have legal kinship links with his family). Unbundling the functions within legal parentage would enable an appropriate level of child participation for each discrete function. For example, it may be argued that there would be little benefit to children in involving them in decisions about who should pay child support or otherwise provide economic support, and there may be some risks that adults may pressure children one way or another. Courts could potentially hear
231 Law and Safety Committee, NSW Legislative Assembly, Inquiry into Inclusion of donor details on the register of births (2012) October 2012; Victorian Law Reform Commission, Review of the Adoption Act 1984 (2017). 232 Ames & Ames [2009] FamCA 825 (Dawe J). 233 Hadley & Pock [2011] FMCAfam 117 (Roberts FM).
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Chapter Six – Children’s Perspectives children’s perspectives on their care arrangements, access to their origins information and their legal kinship identity, but not on the economic obligations of parents. More generally, the bundled nature of legal parentage raises the stakes surrounding any disclosure of paternity doubts, making it more likely that secrets will be kept, and that children will have no opportunity to participate in decisions about their origins information and legal kinship identity. Women considering whether to disclose their doubts regarding genetic parentage may be putting at risk not just their relationship, but also their child’s legal parentage and legal connections to one side of the family.234 If the distinct functions of legal parentage can be unbundled, as they are to some extent for adopted and ART‐conceived children, the law may be able to reflect some nuance in distinct recognition of origins information and legal kinship identity, rather than simplistic labels of ‘true’ or ‘false’ parentage. As discussed in Chapter Four, the biotruth rhetoric used by legislatures and judges means that both have treated legal parentage as a fact rather than a legal status, and as a fact determined at the time of conception or adoption. Within this paradigm, children’s perspectives are automatically irrelevant. This has meant that judges have no discretion around whether and how to hear children’s voices on questions of parentage. A significant obstacle to a child‐centred approach to disclosure of misattributed paternity is the way in which biotruth rhetoric has freighted genetic fatherhood with social and cultural meanings regarding the sexual adequacy and potency of the social father, and his significance as a child’s ‘true’ father. Scott‐Jones suggests this may help explain why it is that high percentages of families formed using donor sperm (and fathers in particular) have sought to keep the fact of donor insemination a secret from the child and from the broader community.235 The rhetoric of biotruth also adds to the ‘cuckold’ narrative, which paints non‐biogenetic fathers as foolish to have been deceived into supporting ‘someone else’s child’, and women who misattribute
234 Lyn Turney, 'Paternity Secrets: Why women don't tell' [227] (2005) 11(2) Journal of Family Studies 227. 235 See, for example, Susan Golombok, 'New Family Forms: Children raised in solo mother families, lesbian mother families and in families created by assisted reproduction' in L Balter and Tanis‐LeMonda (eds), Child Psychology: A Handbook of Contemporary Issues (Psychology Press, 1999) cited in Scott‐Jones, above n 95.
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Chapter Six – Children’s Perspectives parentage as deliberately deceitful.236 Here, it may be that supporting men (and other family members) through the complex emotional tasks of absorbing new information regarding genetic paternity is a crucial step to enable legal responses to misattributed paternity which prioritise children’s wellbeing and social reality rather than men’s shock and anger. The suggestion that the law should make space for hearing children’s perspectives regarding their legal parentage also threatens parental authority.237 The word ‘authority’ shares its provenance with the word ‘author’, both deriving from the latin word auctor, meaning ‘originator, promoter’. Parental authority therefore derives much of its power from an implied claim on the part of parents as the originators (and ‘authors’) of their children. This is consistent with the current definitions of ‘parent’ (both common law and statutory) as discussed in Chapter Three, as someone responsible for the creation of the child (biogenetically or otherwise) or who has legally adopted that responsibility. The focus on the child’s creation treats parentage as a one‐ way relationship created by the parents. These definitions draw on Naturalistic (children conceived from a person’s gametes ‘belong’ to them) and Rationalist (children ‘belong’ to the person who caused them to come into existence) justifications for legal parentage. Both focus on origins to the exclusion of relational inquiries into how a child may have developed parent‐child relationships and built their own kinship identity on the basis of those relationships.
XVI IMPLICATIONS: A CHILD‐CENTRED CONCEPT OF LEGAL PARENTAGE?
For example, if a norm which family law aimed to support was stable and healthy parenting relationships, then priority might be given to using parenting orders to preserve any existing healthy parenting relationships rather than re‐shaping the child’s relationships in line with a particular family structure. Likewise, if family law wished to
236 Evelyn L Wilson, 'Caught in a Trap‐Paternity Presumptions in Louisiana' (2013) 9 The Modern American 36, 43. Lyn Turney’s research interviewing women with paternity doubts indicates that these women have very diverse reasons for not disclosing those doubts ‐ including fear of family violence, concern that their child will lose a parent, and avoidance of conflict or disruption within the family. Turney, above n 234. 237 See discussion in Chapter Four regarding parental authority / autonomy. Holt, above n 17; Neale, above n 134; Elaine Sutherland, 'Listening to the child's voice in the family setting: From aspiration to reality' (2014) 26 Child and Family Law Quarterly 152, 159.
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Chapter Six – Children’s Perspectives create a norm around children’s access to origins information and connection with their families and culture(s) of origin as a key part of their legal personhood, then it could use parenting orders to give the child opportunities to maintain connections with their heritage, culture and genetic kin at least until a time when the child was old enough to decide for themselves on the significance of those connections. Understanding the different functions at play (addressing the child’s legal kinship identity, preserving a functional parenting relationship with the person the child regards as a parent or maintaining a connection to family and culture of origin) means the court could craft orders designed to meet those functions.
What, then, might a child‐centred concept of legal parentage look like?
1 Unbundling Origins Information from Legal Parentage
A crucial first step would be to unbundle origins information from the other functions within legal parentage. As Melanie Jacobs suggests in the context of donor conception,
Disaggregating biological parentage from legal parentage would enable children to have access to information about their background while providing assurances to legal parents that their ability to raise their child as they see fit is not compromised.238
Such measures have already been implemented for donor‐conceived and adopted children in all Australian States and Territories – therefore, extending this approach to all children regardless of the method of their conception would in itself provide greater consistency of treatment across different family structures.239 This might mean changes to the wording of birth certificates to clarify that their purpose is to certify legal parentage (alongside date and place of birth, and any older siblings), not to record genetic origins. For example, Andrew Bainham suggests birth certificates include a
238 Melanie B Jacobs, 'Why Just Two? Disaggregating Traditional Parental Rights and Responsibilities to Recognize Multiple Parents' (2007) 9 Journal of Law & Family Studies 309. 239 By way of the various donor and adoption registers – see discussion in Chapter One.
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Chapter Six – Children’s Perspectives warning such as, ‘[t]his certificate records legal parentage and is not to be relied upon as a guarantee of biological parentage’.240 Information about a child’s origins could then be kept on a separate ‘Origins Register’ – collating any available information about who provided the gametes, who gave birth, and any changes to the child’s legal parentage – for example by way of adoption or a re‐assessment. For adopted people and people conceived via ART, separate registers already exist. Having a single Origins Register would bring that information together in the one place and acknowledge that there are many other children whose legal parentage may not align with their origins information. It would create a space where new information about a person’s biogenetic origins could be acknowledged, and could make use of and expand existing support services which help parents and children navigate testing and disclosure of origins information and contact with biogenetic kin.241 A person’s extract from the Origins Register would be their private information rather than a public identity document – acknowledging that the significance which people attach to genetic parentage is very individual. For some, genetic parentage information is important in terms of being part of their personal health information, while for other people, it has significance for their narrative identity, or may be the basis to develop kinship relationships.242 If genetic testing revealed new information about a person’s genetic origins – for example, that a social father was not a genetic progenitor – then the Origins Certificate could be updated, and the child could be informed in a sensitive way without the news automatically undermining the child’s legal parentage. If the child or one of the parties wished to change a child’s legal parentage to align with the biogenetic testing result, a court order would be required, and would require consultation with the child and
240 Andrew Bainham, 'What is the point of birth registration?' (2008) Child and Family Law Quarterly 449. 241 See, for example, the support services provided to families formed via ART by the Victorian Assisted Reproductive Treatment Authority: Johnson, Bourne and Hammarberg, above n 114; Katrina Hargreaves and Ken Daniels, 'Parents Dilemmas in Sharing Donor Insemination Conception Stories with their Children' (2007) 21 Children & Society 420. 242 Gabriele Griffin, 'Identity matters: donor offspring's narratives of self and their implications for epigenetic debates' (2015) 29 Textual Practice 453.
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Chapter Six – Children’s Perspectives consideration of how the child’s lived family relationships and legal kinship identity might be affected by a change to legal parentage. This untangling of legal parentage from biogenetic origins is being considered by the government of the Netherlands, with a 2017 Government Committee recommending a change in terminology from ‘recognition’ of parentage to ‘acceptance’ as wording which ‘better displays the character of the legal institution, namely a legal act and not an act of truthfulness’.243 The same report recommends the creation of an ‘Origins Story Register’ to register ‘as much information regarding parentage as possible’ as a resource for the children concerned to address their rights to know their origins under Articles 7 and 8 of the UN Convention on the Rights of the child and Article 8 of the European Convention on Human Rights.244 The report suggests that
… legal parentage can offer protection to social parentage and can, therefore, contribute to the continuity of the parent‐child relationship and the improvement of both the factual position, as well as the legal position of the child.245
The report also lays out recommendations for up to four legal parents where necessary to ‘reflect the social reality’, either by way of agreement before the child is born, or after the child is born, but to add on people who have become significant to the child as parents.246 Professor Susan Golombok was recently asked to comment on these proposed changes to legal parentage in the Netherlands and remarked that ‘the greater emphasis on family relationships than on family structure appears to be a radical and highly innovative departure from existing law, and reflects contemporary understanding of the processes that are most influential in children’s psychological wellbeing’.247 Other jurisdictions are therefore actively considering and implementing what may have
243 Government Committee on the Reassessment of Parenthood (Staatscommissie Herijking Ouderschap), 'Child and Parents in the 21st Century' Government of the Netherlands, 2017) 43. 244 Ibid 21,22. 245 Ibid 63. 246 Ibid 62‐69. 247 Letter from Professor Susan Golombok to Clerk Ms Hessing‐Puts, Standing Committee on Security and Justice, House of Representatives of the States General, The Netherlands, 16 January 2017 <
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Chapter Six – Children’s Perspectives previously been thought of as radical approaches which are shifting the focus of legal parentage from biogenetic parentage to the child’s lived family. In response to demands from adopted people, in Australia in 2012, the Senate Committee on Forced Adoptions recommended that ‘all jurisdictions adopt integrated birth certificates’ listing a person’s birth parents and adoptive parents on the one certificate and issue them to eligible people on request. A number of states have begun law reform processes to implement integrated birth certificates.248 Integrated birth certificates could therefore be made available for anyone who wanted a birth certificate listing both their origins information and their legal parents.
2 Allocating Legal Parentage at Birth
Separating out origins information from legal parentage would require greater clarity on the rules allocating legal parentage at birth. This thesis does not attempt to lay out a proposed new set of rules for determining legal parentage at birth except to suggest that an approach which treats children as legal subjects (rather than as consequences) should seek to define legal parentage in terms of the relational significance of the relationship to the child and adults involved. At birth, the best guess we can make as to which relationships are significant to the child is likely to start, as the current presumptions of parentage do, with the woman giving birth and any other person(s) with whom she plans to co‐parent. There are good policy reasons for preferring a method of allocating parentage at birth (or within a year of the child’s birth) which does not inquire too intimately into the details of the parenting or the relationships between the parties, but rather, treats them as legal subjects capable of negotiating and describing their relationships.249 As Naffine
248 Senate Community Affairs References Committee, Parliament of Australia, Commonwealth Contribution to Former Forced Adoption Policies and Practices (2012) [2012]) x, Recommendation 12.33; Victorian Law Reform Commission, (2017) xv, xiii; 'Birth Certificate Content Review', New South Wales Registry of Births, Deaths and Marriages.4. 249 For example, see Kelly’s proposed presumptively binding pre‐conception agreements. Fiona Kelly, 'Multiple‐Parent Families under British Columbia's New Family Law Act: A Challenge to the Supremacy of the Nuclear Family or a Method by Which to Preserve Biological Ties and Opposite‐Sex Parenting' (2014) 47 UBC Law Review 565, 594.
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Chapter Six – Children’s Perspectives notes, inviting law into the relational detail of our lives carries risks as well as benefits.250 In family law particularly, the more intimate the inquiry into the relational detail, the more discretion a judge has, and the more space is created for personal views about what families ‘should’ look like to affect decision‐making. On a similar note, Robert Leckey suggests that expecting law to faithfully reflect complex relational realities is both impossible and undesirable:
Law cannot address all desires or name all affiliations, but those alert to the risks of totalizing legislative ambitions will not lament such incapacity.251
Leckey therefore argues that ‘a fundamental commitment to pluralism’ requires a minimalist approach to law’s recognition and regulation of relationships, so as to preserve ‘ecologies of relating that law will not purport to regulate or even to name’.252 Yet, re‐focusing attention on the ways that children at the heart of a parentage disputes relate to and rely on the adults in question may offer a way out of law’s totalising tendency. Rather than proposing any one‐size‐fits‐all rules about the legal meaning of genetic and social parents, which imagines one ideal family structure (or a small set of alternative structures), a child‐centred approach would give judges discretion to craft legal outcomes which protect those relationships which are crucial to a particular child’s wellbeing. Such a model could treat children as key informants on which relationships are important to them and for what functions. Making it possible for more than two people to sign on as legal parents would mean that legal parentage could better reflect the child’s lived family in those families where two or more adults had committed to parenting the child. Legal recognition of multiple‐parent families has been regularly suggested as a reform to give better legal protection to children in families formed via ART,253 and this suggestion has been
250 Ngaire Naffine, 'Review Essay: The Liberal Legal Individual Accused: The Relational Case' (2014) 29 Canadian Journal of Law and Society 123. 251 Leckey, above n 78, 547. 252 Ibid 545. 253 Jacobs, above n 238; Philip Bremner, Collaborative Co‐Parenting: A Comparative Study of the Legal Response to Polyparenting in Canada and the UK University of Exeter 2015 ); Emily Jackson, 'What is a Parent?' in Alison Diduck and Katherine O'Donovan (eds), Feminist Perspectives on Family Law (Routledge, 2006) 59‐74; Alison Harvison Young, 'Reconceiving the Family: Challenging the Paradigm of the Exclusive Family' (1998) 6 American University Journal of Gender Social Policy and Law 505; Julie McCandless and
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Chapter Six – Children’s Perspectives implemented (to some degree) in a number of jurisdictions.254 As Kelly has pointed out regarding such laws in British Columbia, however, norms of the biogenetic family persist which have the practical effect that
the only kind of section 30 family capable of being created is one in which a child being raised by same‐sex parents will acquire a third legal parent who is both the child’s other biological progenitor as well as an individual of the opposite sex.255
A view that acknowledges the dignity of children as legal persons and relational beings might recognise that before a child is born and while it is an infant, the intentions and agreements of the adults involved are probably the best way to predict the parent‐ child relationships which will form.
3 Re‐visiting Legal Parentage
If parentage is re‐visited further down the track, however – once the child has had an opportunity to form relationships with family and to rely on them to meet their needs – there is a stronger argument that any change to a child’s legal parentage should involve a relational analysis to determine whom the child relates to and relies on as parents. This might occur, for example, where a stepfather has signed the child’s birth certificate as an informal way of adopting the child, but then after separating from the mother, seeks to challenge parentage in order to end his child support liabilities.256 A relational analysis would allow the court to hear whether the child regarded and relied
Sally Sheldon, 'The Human Fertilisation and Embryology Act (2008) and the Tenacity of the Sexual Family' (2010) 73 Modern Law Review 175, 191. 254 For example, British Columbia: Kelly, above n 249; California: California Family Code, section 7612(c), discussed in Tricia Kazinetz, 'You Can't Have One without the Other: Why the Legalization of Same Sex Marriage Created a Need for Courts to Have Discretion in Granting Legal Parentage to More than Two Individuals' (2018) 24 Widener Law Review 179 See also case law in Louisiana, Oregon, Washington, Massachusetts, and Alaska, which recognise third‐parent adoptions in individual cases. See ibid 181. 255 Kelly, above n 249. 256 See for example, Brianna v Brianna [2010] FamCAFC 97 (Bryant CJ, Finn and Thackray JJ, 28 May 2010). and B & B & DCSR [2001] FamCA 1371 (Dawe J, 6 December 2001).
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Chapter Six – Children’s Perspectives on him as a parent and what significance the legal parentage relationship held for the child in terms of their legal kinship identity. A first step to allowing courts to hear children’s perspectives on their legal parentage would be to repeal the amendment made in 2011.257 This amendment removed the parentage provisions within the Family Law Act from the category of ‘parenting orders’ (and therefore from the scope of the principle that the child’s best interests must be paramount – which requires consideration of the child’s views).258 A child‐centred concept of legal parentage could thus allow for orders (whether contested or by consent) to secure legal parentage for a step‐parent, misattributed parents, extended family or kinship carers, and receiving parents in customary adoption practices such as kupai omasker. This would represent a step beyond an order for parental responsibility, and need not result in the erasure of another parent in the way that step‐ parent adoption currently does.
4 Standing in the place of a parent – the Canadian model
The Canadian approach (at least as far as child support is concerned) since 1999 has been that children’s interests require an interpretation of ‘standing in the place of a parent’ that ‘recognizes that when people act as parents towards them [children], the children can count on that relationship continuing and that these persons will continue to act as parents towards them’.259 The objective factors used by the majority in Chartier to determine ‘the nature of the relationship’ did not include, however, the child’s
257 These amendments excluded parentage declarations and related orders from the category of ‘parenting orders’, and therefore from the requirement that the best interests of the child be paramount – and within that process, that the views of the child be considered. Family Law Act 1975 (Cth), s 64B(1) ‘However, a declaration or order under Subdivision E of Division 12 is not a parenting order .’ Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), s 17. 258 Ibid. 259 Chartier v Chartier [1999] 1 SCR 242, at [32] per Bastarache J (‘Chartier’) (Supreme Court of Canada. L’Heureux‐Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.); Cornelio v Cornelio (2008) 94 OR (3d) 213; G (TD) v G (LM) [2009] NBQB 207 ((Unreported, New Brunswick Court of Queen's Bench, Terrence J. Morrison J, 30 July 2009); Nicholas Bala and Meaghan Thomas, Legal Studies Research Paper Series, Who is a "Parent"? "Standing in the Place of a Parent" & Canada's Child Support Guidelines s.5, Queen's Faculty of Law No Accepted Paper No. 07‐11 (2007); ibid.
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Chapter Six – Children’s Perspectives subjective perspective on whether they regarded the person as a parent.260 Many of these factors, however, seemed aimed at establishing whether the child had objective grounds to rely on the person as a parent – ie what would be fair ‘through the eyes of the child’.261 In Canada, then, children’s perspectives have informed judicial understandings of fairness, such that misattributed fathers who have ‘stood in the place of a parent’ have had continuing child support liability where a parent‐child relationship has been established. For example
T.D.G. maintains that it would be unfair for him to be obligated to pay child support when he is not the biological father. While I understand T.D.G.'s feelings of unfairness, it should be remembered that the question of fairness must be viewed not only through the eyes of the purported parent, but also through the eyes of the child. One could scarcely say that it is fair to A.G. to have the only father she has ever known unilaterally renege on his commitment to her as a father. So while T.D.G.'s unfairness argument resonates, it does not displace what is fair to A.G.262
As Wiegers notes, when it comes to misattributed fathers who have functioned as social parents to the child, outcomes have diverged along two distinct lines of authority – one emphasizing the knowledge of the misattributed father as crucial to his liability for a non‐genetic child, and the other prioritising the interests of the child in a continuing commitment from someone the child has relied on as a parent.263 The Canadian approach seems therefore to sidestep any problems around treatment of genetic parentage as ‘true’ parentage by creating a distinct category for non‐genetic parents who are ‘standing in the place of a parent’. A finding of genetic non‐ paternity does not necessarily eject a misattributed father from the rights and responsibilities of being a parent – including child support obligations. In insisting that
260 Chartier v Chartier [1999] 1 SCR 242 (Supreme Court of Canada. L’Heureux‐Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.). 261 Ibid. 262 G (TD) v G (LM) [2009] NBQB 207 ((Unreported, New Brunswick Court of Queen's Bench, Terrence J. Morrison J, 30 July 2009) [17]. 263 Wanda Wiegers, 'Fatherhood and Misattributed Genetic Paternity in Family Law' (2011) 36 Queen's Law Journal 623, 668.
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Chapter Six – Children’s Perspectives parental obligations may also follow from a person treating a child as their own over a sustained period, this approach allows for continuity of the legal parent‐child relationship upon which a child has relied. For example, in Ballmick & Ballmick, Maresca J held that despite DNAT testing showing that the husband was not the genetic father of the two elder children, he was nonetheless ‘standing in the place of a parent’ and was therefore liable for ongoing child support payments regarding the children (then 15 and 11 years old). The husband argued that he was no longer ‘standing in the place of a parent’ because he had cut off contact with his sons once he received the DNA result. Maresca J, however, remarked that:
The appropriate question to ask is whether the relationship that existed at the time that the family was functioning as a unit, up until separation, was one in which the father treated the child as his own. To permit a father, in a sense, to “backdate” his decision to parent the children ignores completely the reality of the children’s lives. Although the father may have made a different decision had he been advised of the facts at the time of the child’s birth, the fact is that he was a parent to the child for many years. The emotional bonding, shared memories and trust that was built up over time cannot be wiped out with the stroke of a pen. For better or for worse, with intention or without it, Mr. Ballmick is the boys’ father. In all the ways that fatherhood matters — love, guidance, pride, nurturing, role modeling, connection — Mr. Ballmick is a father to these boys. It is their concept of him as father that was — and continues to be — important.264
Here, Maresca J drew on the words of Justice Bastarche, speaking for the Canadian Supreme Court in Chartier:
Once a person is found to stand in the place of a parent, that relationship cannot be unilaterally withdrawn by the adult. … The provisions of the Divorce Act that deal with children aim to ensure that a divorce will affect the children as little as possible. Spouses are entitled to divorce each other, but not the children who were part of the marriage. The interpretation that will best serve children is one that recognizes that, when people act as parents toward them, the children can count
264 Ballmick v Ballmick [2005] ONCJ 101 [20].
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on that relationship continuing and that these persons will continue to act as parents toward them.265
This emphasis on ensuring children can continue to ‘count on’ the people who act as parents towards them has some conceptual similarities with the ‘parentage by estoppel’ doctrine applied in a number of United States jurisdictions.266 Parentage by estoppel arises where a child has relied on a person as a parent, and the person has acquiesced in that reliance. In such circumstances, the person can be estopped from denying parentage. Estoppel has been used only once in Australia to determine parental obligations – by the NSW Supreme Court in Equity in W v G.267 This case concerned a separated lesbian family where one mother (the birth mother, and therefore the children’s only legal parent under the then law) had been left with the care of the children, while the co‐mother (in a much stronger asset and income position) denied she had any responsibility to support the children. In an era when the Family Law Act 1975 (Cth), Child Support (Assessment) Act 1989 (Cth) and Status of Children Act 1996 (NSW) did not recognise a lesbian co‐mother as a legal parent, one of the few avenues left to the birth mother to seek a contribution from her ex‐partner towards the costs of raising the children was via an equitable estoppel claim. Significantly, the estoppel in that case was based on the reliance of the birth mother, not on that of the children (as is the case with parentage by estoppel in the US).268
5 Hearing children on their legal parentage
Once a child has a chance to consolidate these relationships and start expressing their perspective on the significance of those relationships, then any potential change
265 Chartier v Chartier [1999] 1 SCR 242, [32] (Supreme Court of Canada. L’Heureux‐Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.). 266 Sarah H Ramsey, 'Constructing Parenthood for Stepparents: Parents by Estoppel and De Facto Parents under the American Law Institute's Principles of the Law of Family Dissolution, ' (2001) 8 Duke Journal Gender Law & Policy 285; Sacha M Coupet, 'Ain't I a Parent?: Exclusion of Kinship Caregivers from the Debate over Expansions of Parenthood' (2010) 34 NYU Review of Law & Social Change 595; Cahn, Naomi, 'The New Kinship' (2012) 100 The Georgetown Law Journal 367. 267 W v G (1996) 20 Fam LR 49. 268 See, eg W v W, 728 A 2d 1076 (Conn, 1999). See discussions in Katherine Baker, 'Bargaining or Biology? The History and Future of Paternity Law and Parental Status' (2004) 14 (1) Cornell Journal of Law & Public Policy ; Leslie Joan Harris, 'The Basis for Legal Parentage and the clash between custody and child support
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Chapter Six – Children’s Perspectives to the child’s legal parentage should take the child’s perspective into account. As Smart points out, hearing children’s perspectives is likely to make family law decision‐maker harder rather than easier:
… if we really do allow children to speak, and if we really attempt to hear what they say, it will become harder to find solutions. This is because at present, in policy terms, children are regarded as the objects of their parents’ concerns and desires. This means that the just apportionment of the child (or the child’s time) is seen as the solution to the conflict between parents. But once the child himself or herself becomes a speaking participant in the process, the idea of apportionment rapidly appears to be less than ethical as a solution. This means that including the perspectives of children will alter the whole process; it will not be the ingredient that makes the current process fairer or easier to resolve.269
Yet if hearing and taking into account children’s perspectives can improve the quality of the decision‐making, in terms of better serving children’s needs and respecting their dignity as legal subjects, then family law needs to grapple with these difficulties rather than bypass them. If the family law system is to truly hear and give credence to children’s voices on whom they regard and rely on as parents, it may need to accept that what children say may not fit with the current constraints on legal parentage – particularly the expectation that there be a maximum of two legal parents for any given child. A child‐centred approach to legal parentage might therefore be more inclusive, but may not necessarily treat all parents equally – their authority and obligations regarding the child may stem from their significance to the child, rather than from their status as a parent as such.270
6 Further unbundling the functions within Legal Parentage
' (2009) 42 Indiana Law Review 611, 630; Alison Harvison Young, 'This Child Does Have 2 (or More) Fathers: Step‐Parents and Support Obligations' (2000) 45 McGill Law Journal 107, 112. 269 Smart, 'From children's shoes to children's voices', above n 11. 270 Katharine K Baker makes a similar point, suggesting a ‘a concept of parenthood that is more inclusive, but also more hierarchical’, but grounds the different types of parent role in the ‘different kinds of investment‐genetic, emotional, financial’ made by the adult, rather than in the different significance of the relationship for the child. Katharine K Baker, 'Bionormativity and the Construction of Parenthood' (2007‐2008) 42 Georgia Law Review 649, 714.
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I therefore argue that for family law to perform the functions bundled within legal parentage in a way that is more child‐centred and responsive to children’s relational needs, it needs to be able to fragment these functions – to use different criteria for each function and to distribute them among different adults where necessary. By unbundling the functions within legal parentage, it is possible to examine the function which legal parentage is serving in a particular context and craft our decision‐making to the priorities which are of significance to that particular function. This would be a movement, then, from ‘truth’ to significance and function as the rationale for legal parentage. It is already possible (as discussed in Chapter Five) to unbundle default parental responsibility and the care of children from legal parentage. It is also possible to extend economic obligations towards children to stepparents under s 66M of the Family Law Act, though this provision has rarely been mentioned in the misattributed paternity cases.271 In both cases, however, judicial discretion is limited, not by the child’s understanding of their family, but by the notion of legal parentage as grounded in biological truth. Further unbundling legal parentage in this way involves using legal parentage as a legal status which can help resolve specific human problems rather than as a reflection of some essential truth about human parent‐child relationships. As Naffine notes, ‘[a] central feature and an important virtue of law is its dynamism: its flexibility, its creativity, its ability to respond to fresh problems and to new circumstances’.272
Legal judgments could not respond to the specific needs and demands of each new case if they always kept referring back to a fixed idea of what it is to be a proper legal being.273
271 For exceptions, see Henning & Henning [2012] FMCAfam 119 (Step parent maintenance refused); V & V [2002] FMCAfam 408 (Bryant CFM, 19 November 2002) (Mother of misattributed paternity child given leave to apply for s 66M maintenance from her ex‐husband). 272 Ngaire Naffine, Law's Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Hart Publishing, 2009) 176. 273 Ibid.
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Chapter Six – Children’s Perspectives
The insistence that there is one ‘truth’ of legal parentage for all children, and that legal parentage necessarily binds together the four functions discussed here hinders the ability of judges to use this dynamic aspect of the common law.
The reform directions outlined above are inevitably relational reforms because they propose the opening of a space for the ‘nature of the relationship’ to be considered when family law judges (or indeed the registrars of the various registers of births, deaths and marriages) are contemplating any change to the legal status of a parent‐child relationship.274 This is what Robert Leckey might call a ‘strong’ relational analysis in that it not only directs attention to human relationships but it also aims to protect and support those relationships which are significant to the child for their healthy development and growing autonomy.275 Hearing children’s perspectives on their parent‐ child relationships is crucial to their autonomy – not understood only in an individualistic sense, conditional on independence and ability to assert and enforce rights, but autonomy understood relationally – as a freedom which becomes possible through our relationships with others.276
XVII CONCLUSION
This chapter has argued that the evidence from the disputed paternity judgments, from ART‐conceived and adopted people, and from children participating in the family system more generally, indicates how important it is to give children a chance to participate when a change to their legal parentage is proposed. It has outlined the mechanisms within the family law system for children’s participation, and the obstacles which have hindered the extension of these mechanisms to questions of legal
274 Jennifer Nedelsky, Law's Relations: A Relational Theory of Self, Autonomy and Law (Oxford University Press, 2011) 311. 275 Robert Leckey, Contexual Subjects: Family, State and Relational Theory (University of Toronto Press, 2008) 13. 276 Like the ‘Liberal Legal Individual’ discussed by Ngaire Naffine: Naffine, 'Review Essay: The Liberal Legal Individual Accused: The Relational Case', (2014) 29 Canadian Journal of Law and Society 123.
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Chapter Six – Children’s Perspectives parentage. Finally, it has proposed directions for law reform to address these obstacles and to develop a more child‐centred model of legal parentage. The judgments examined in this chapter indicate that children’s perspectives are almost completely absent from disputed parentage judgments. As a result, these children and young people have no input into a significant decision affecting their legal kinship identity. Many judgments indicated that where children were old enough to understand the situation, they were distressed by the litigation and the surrounding circumstances. This lack of space for children’s perspectives to be heard is related to the bundled nature of legal parentage, and biotruth rhetoric: once a finding was made as to the child’s biogenetic origins, legal parentage followed. This has meant that a child’s legal parentage is sometimes instrumentalised for other agendas – such as cessation or refund of child support payments. The hierarchical emphasis on knowledge of genetic progenitors and the intentions of those progenitors as authoritative knowledge for determining legal parentage means that children and young people’s perspectives on their own legal parentage are dismissed.277 Legal kinship identity is, it is argued, a relational aspect of our legal personhood – but one into which children currently have no input.278 This thesis argues that as children grow and become social actors themselves, defining themselves in relation to whom they regard and rely on as parents and family, their best interests (as well as basic principles of personal autonomy) require law to create spaces for their perspectives to be heard before any changes are made to their legal kinship identity. Treating children as persons rather than as mere products of their conception, and understanding the significance of legal kinship identity for a child’s legal personhood, means that the focus
277 Brigitte Jordan, 'Authoritative Knowledge and Its Construction' in Robbie E Davis‐Floyd and Carolyn F Sargent (eds), Childbirth and Authoritative Knowledge: Cross Cultural Perspectives (University of California Press, 1997) 55. 278 Though, in the adoption context, the Victorian Law Reform Commission has recently recommended that the Adoption Act be changed to specify that ‘children capable of forming their own views on a matter concerning their adoption must be given the opportunity to express them freely and these views are to be given due weight in accordance with the age and maturity of the child’. Victorian Law Reform Commission, Review of the Adoption Act 1984 (2017) Recommendation 4 d, xxviii.
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should shift from parenthood (the state of being a parent) to parentage (a child’s relationship with a parent). Extending consideration of children’s perspectives (within the contextual best interest inquiry) to determinations about origins information and the child’s legal kinship identity would better recognise the ways in which children may be active participants in forging their family identities and relationships, building on their origins information and their lived family relationships. By de‐coupling access to information about biogenetic origins from determinations of legal kinship identity and providing distinct legal processes for each, it is possible to address children’s dual interests in information, and in legal protection of the relationships which they rely on. This would mean challenging the biotruth rhetoric which has bound together the disparate functions of legal parentage as a biological ‘truth’. Rather, if it is recognised as something distinct – as a legal status constructed to secure legal family and provide legal protection for life‐long kinship connections – then it is possible (and essential) to hear from children themselves in terms of who they regard and rely on as parents.
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Chapter Seven – Conclusion
CHAPTER SEVEN: Conclusion
(OLIVER rushes up to the reception desk in the Emergency Department at the hospital where ambulance has taken HEDVIG after she has attempted suicide)
OLIVER (frantic): I’m here to see Hedvig – they just brought her in.
NURSE: Are you her relative?
OLIVER (rushing past desk): Yeah, I’m her dad.1
A genetic test is able to provide information about the levels of genetic similarity between two people, and to help draw conclusions about whether a particular person’s gametes may have contributed to a particular child’s conception. It is less useful at the door of the Emergency Department, where the question is not about conception, but connection. Parent‐child relationships are fundamentally social connections and therefore our knowledge of them (and law’s attempt to reflect that knowledge) will always be more diverse, chaotic and dynamic than the data provided by a genetic parentage test.2 Genetic testing therefore provides a poor indicator for which relationships are significant to children’s care, kinship, identity and support, and which therefore deserve legal protection. Legal parentage, as a status which bundles together these diverse functions, is no longer able to respond coherently to the diversity and complexity of family practices. The biotruth rhetoric binding these functions together is also under strain. Treating social parent‐child connections which do not align with genetic parentage as ‘lies’ fundamentally mistakes law’s purpose in recognising particular relationships as that of parent and child and can cause harm to the humans involved in those connections. Legal definitions of ‘parent’ not only reflect social realities, but also help
1 The Daughter (Directed by Simon Stone, Screen NSW and Wildflower Films, 2015). 2 Here, I borrow from John Dewar’s notion of the ‘normal chaos’ of family law, and similar remarks from Carol Smart on the family law ‘mess’: John Dewar, 'The Normal Chaos of Family Law' (1998) 61(4) Modern Law Review 467, 468. See also Carol Smart, 'Making Kin: Relationality and Law' in Anne Bottomley and Simone Wong (eds), Changing Contours of Domestic Life, Family and Law (Hart, 2009) 7, 11; Jonathan Herring, 'Farewell Welfare?' (2005) 27 Journal of Social Welfare and Family Law 159.
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Chapter Seven – Conclusion produce those realities. People build identities and forge social kinship ties based on the legal labels of being family to one another which legal kinship provides. As Leckey notes, these ‘legal labels have discursive and material effects on those subjects which they produce’.3 The longer a person lives with a label, the more personal and relational significance it acquires, and the greater harm it can cause to their identity and relationships to strip the label away. This potential for harm means that only by consulting with the person most at risk of harm can we respect their dignity and subjectivity as a legal person. Children bear the collateral damage of family law’s current emphasis on biogenetic parentage as ‘true’ parentage – treated as consequences rather than as legal persons whose knowledge about their own lives and relationships is relevant to their legal kinship identity. In concluding the thesis, this chapter comes back to the central problem it addressed at the very start: the failure of legal parentage as currently understood within Australian family law to respond coherently and constructively to families where paternity is disputed. It revisits the research questions laid out in Chapter One, and traces the answers which each of the chapters have made to those questions. It brings together the overall critique of the bundled model of legal parentage as a legal concept at breaking point, no longer able to meet the goals of a modern family law system in terms of prioritising children and their developing autonomy. Finally, in making the case for reconceiving of legal parentage as a status, capable of being unbundled into its discrete functions, it articulates the relationships between legal parentage and legal personhood, and accompanying ideas of human dignity.
XVIII REVISITING THE RESEARCH QUESTIONS
This thesis has analysed disputed paternity judgments in order to explore important questions about how judges and legislation define and understand legal parentage; how legal parentage functions as a status serving particular purposes for children, adults and the state; how it operates as concept, and which rhetoric and knowledge it relies on; and where children fit into these determinations and how they
3 Robert Leckey, Contexual Subjects: Family, State and Relational Theory (University of Toronto Press, 2008) 5.
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Chapter Seven – Conclusion are impacted by them. In responding to these questions, this thesis has challenged the simple story that determining legal parentage is merely a factual inquiry, with each chapter drawing on a different aspect of the legislation and disputed paternity judgments. Its central observations are that legal parentage bundles together four distinct functions (providing origins information, designating default parental responsibility, defining the child’s legal kinship identity and assigning economic liability for the child) – and that these four functions are held together by a rhetoric of biotruth – the story that legal parentage merely reflects the biological ‘truth’. Chapter Two traced the modern origins of this story to argue that despite rhetoric about ‘blood’ and patriarchal understandings of kinship as ‘seed’, the view that legal parentage was simply a process for approximating or discovering knowledge of genetic parentage is a relatively new one. The distinctions between ‘legal’ and ‘natural’ fathers were treated as discriminatory laws which needed to be abolished for equality for ex‐nuptial children. What was lost in the process was the understanding of legal parentage as a legal status distinct from the biogenetic facts which could be used to help determine it – the critical distance in which lawyers and law‐makers understand legal parentage as a legal mechanism (rather than as legal recognition of a naturally‐occurring status). This shift was understood by liberal reformers as shift from a Legalistic (in Naffine’s taxonomy) approach to a Naturalistic one, replacing status with ‘truth’, and creating a hierarchy of knowledge in which genetic parentage knowledge trumped birth certificates as well as children’s and adults’ relational knowledge of lived family relationships. Chapter Three then tested the simple story of legal parentage as biological ‘truth’ against the current law. When we examine how legal parentage works, it becomes clear that it is a legal status determined in complex ways and which serves complex functions. Legal parentage in its current ‘omnibus’ model bundles together (presumed) genetic origins information, default parental responsibility, economic responsibility and genetic legal kinship identity to define the same two people as legal parents for all functions. Children of disputed paternity are left in a precarious state by current parentage law, because a finding as to their genetic paternity can retrospectively unravel their parentage for the other three functions – impacting on parenting order decisions, the child’s legal identity and kinship, and the economic support available for the child. This 323
Chapter Seven – Conclusion model is insufficiently flexible to respond to the diversity of Australian families, to children’s perspectives and relational family realities. In the misattributed paternity cases studied here, it has limited the ability of courts to determine whether a retrospective change to a child’s legal parentage is in their best interests or to hear from the child themselves on whom they regard and rely on as a parent. Chapter Four closely analysed biotruth rhetoric within legal parentage judgments, unpicking the underlying assumptions and ways in which particular kinds of knowledge are legitimated as authoritative legal knowledge. Biotruth rhetoric conflates the genesis of the legal parent‐child relationship with the genetic conception of the child, and obscures the policy decisions at play. It represents what Jordan might call a hierarchical distribution of authoritative knowledge, because non‐genetic ways of knowing who is a parent to whom (such as children’s knowledge of their own family relationships) are dismissed in favour of ‘scientific’ ways of knowing via genetic testing technologies.4 It is at odds with the complex and diverse reality of lived family life and therefore causes harm because judges are unable to be flexible or responsive to children’s needs and perspectives when it comes to their legal parentage. Here, I would agree with Jonathan Herring that, ‘[i]n our present society ‐ with such a wide range of families, styles of parenting and structures of relationships ‐ we need flexible, responsive, albeit indeterminate, legal principles’.5 Rhetoric about biology also conceals an underlying Rationalist logic which privileges the choices and intentions of men over the child’s relational reality. Biotruth therefore carries with it a gender‐biased story of reproduction as a rationalist transaction in which children are mere products. Treating legal parentage as a question of ‘truth’ is also misleading because it disguises policy decisions about what is significant to children, parents and the state as mere factual questions – thereby cloaking the reasoning and subjective approaches of judges under a claim of objective ‘truth’. Chapter Five examined whether parenting orders can resolve the problems which the bundled model of legal parentage causes for disputed paternity children. In
4 Brigitte Jordan, 'Authoritative Knowledge and Its Construction' in Robbie E Davis‐Floyd and Carolyn F Sargent (eds), Childbirth and Authoritative Knowledge: Cross Cultural Perspectives (University of California Press, 1997) 55, 74. 5 Herring, above n 2.
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Chapter Seven – Conclusion un‐coupling parenting orders from ‘omnibus’ legal parentage, the Family Law Act has allowed for greater discretion and child‐focus in decisions about the care of and decision‐making for children. This flexibility moderates the rigidity of legal parentage, but parenting orders cannot, within the current legislative framework, address the child’s legal kinship identity or ensure that disclosure of the child’s origins information is handled in a child‐centred way (unlike processes available for adopted or ART‐ conceived people). Treating genetic parentage as ‘true’ has also sometimes meant that children’s knowledge and perspectives on their own family relationships have been dismissed within the parenting orders process. For example, children’s knowledge of their family has been treated as ‘confusion’ requiring re‐adjustment to align with their genetic parentage. Chapter Six turned to what is missing from determinations of legal parentage – the voices of children themselves and their knowledge about whom they regard and rely on as parents. In the disputed paternity cases, children were excluded from any participation in significant decisions affecting their lifelong legal kinship identities. This exclusion was both a feature of the bundled nature of legal parentage (which assumes that origins information decides the question of legal parentage status) and of biotruth rhetoric (which authorises knowledge of genetic parentage as determining legal parentage, and dismisses children’s relational knowledge of their own family). Though children’s voices were absent, many judgments indicated that the children involved were distressed, not just by the disclosure of new information about their origins, but by the ways in which the adults in their lives treated this information as invalidating their existing legal relationships and kinship identity. In almost all the cases analysed, once a finding was made as to the child’s biogenetic origins, legal parentage followed. This meant that the child’s legal parentage was sometimes instrumentalised for other agendas, such as cessation or refund of child support payments, or opposing a misattributed father’s claim for time with the child. The hierarchical emphasis on knowledge of genetic progenitors and the intentions of those progenitors as authoritative knowledge for determining legal parentage means
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Chapter Seven – Conclusion that children and young people’s perspectives on their own legal parentage have been dismissed as mere ‘feelings’.6 Chapter Six therefore suggested a number of reform options for legal parentage, centred on unbundling the disparate functions and therefore creating space for children’s voices to be heard on questions of their legal kinship identity, and on access to their origins information. If courts open up the decision‐making process surrounding determinations of legal parentage as a question of a legal status, then it becomes possible for children and their advocates to make claims about what is of significance to the children in question, and to talk about what should (and should not) be of significance when making different kinds of decisions. By unbundling the four functions currently served within legal parentage, it becomes possible to give children (and the adults they become) some level of agency in terms of determining the significance of their genetic origins, social parenting relationships and legal kinship identity and the relationships between these. Overall, the thesis argues that neither the bundled structure of legal parentage nor the rhetoric of biotruth are serving disputed paternity children well. It takes issue with the bundled structure of legal parentage on the basis that it is insufficiently flexible to meet the needs of more complex families and can amplify the uncertainty, trauma and dysfunction created when there is a dispute as to parentage. In conflating genetic origins with legal parentage, biotruth rhetoric does not stand up as a historical account of legal parentage, nor as a description of how current laws function. The biotruth story binds four distinct functions into the status of legal parentage, requiring families to fit (or appear to fit) within the biotruth norm in order to serve all four functions. The rhetoric justifying this conflation rests on a series of false assumptions about the nature of genetics, personal identity and kinship, and the best interests of the child. Rather, the conflation of legal parentage with biological ‘truth’ works to legitimate particular forms of knowledge (such as genetic parentage testing) over children’s lived experiences of their relationships with parents and their kinship identity. Its impact on children in
6 Jordan, above n 4 ‘…[T]he subject children define their family by feelings, not by law. The adults however are seeking, as they are entitled to do, legal definition’: Masson & Parsons [2017] FamCA 789 (3 October 2017) [49].
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Chapter Seven – Conclusion misattributed paternity disputes can be moderated but not removed by way of parenting orders (if the misattributed father seeks them). Given the dearth of children’s voices in the misattributed paternity cases, there is an urgent need for empirical research which hears directly from children in disputed paternity situations in order to better understand the impact on them of current laws. Research with children and adults in other contexts where their genetic and social parents do not align (eg adoption and donor conception) indicates that many feel strongly about access to information about their origins, and about having a say in how their legal identity and kinship is recorded.
XIX RECONSIDERING THE BUNDLED MODEL OF LEGAL PARENTAGE
This tension between simplistic rhetoric and complex law means that while legal parentage is clear and works relatively well for those children whose families follow the norm of the heteronuclear biological family, for other children, the model is less effective. Either it requires an awkward transposition of non‐biological parents into a notion of ‘parent’ defined by biology as ‘truth’ (in the case of adopted or ART‐conceived children), or it leaves children vulnerable to contestation over their parentage (in the case of paternity disputes or non‐normative families). Biotruth rhetoric therefore causes harm to children by construing non‐genetic parent‐child relationships as ‘false’ or ‘fictional’ and leaving no space for the consideration of children’s perspectives on their own legal parentage. For misattributed paternity children (as well as a growing number of other children whose families do not meet the norm of the genetically‐related, heterosexually‐ parented family) legal parentage cannot meet all four functions bundled within it. In particular, it cannot provide accurate origins information while securing and protecting the child’s significant parenting relationships and legal kinship identity if (as the current model supposes) legal parents are always genetic progenitors. For misattributed paternity children, this means that a DNA test result can undermine their legal relationship with a parent, while for adopted or donor‐conceived people, it means that their social parents have to be reinscribed into the position of genetic parents in order to be valid. We should not be surprised that while this biotruth norm persists, parents of donor‐conceived children are ‘still reluctant’ to inform their children about their
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Chapter Seven – Conclusion donor conception due to concerns about isolation and stigma.7 As long as the legal meaning of ‘parent’ is tethered to a norm of biogenetic parentage as ‘truth’, any disclosure (of donor conception or misattributed paternity) immediately renders non‐ biogenetic parenting relationships less valid and more vulnerable to stigma. In the case of disclosure of misattributed paternity, the child’s parentage is rendered not just rhetorically invalid, but legally invalid. If legal parentage is understood as a legal relationship status designed to secure the child’s lived family, then the biotruth rhetoric which treats genetically related children of heterosexual parents as ‘normal’ and all other children as deviant starts to crumble. The increasingly complex statutory exceptions to the common law definition of parent for adopted, ART‐conceived or surrogate‐born children illustrate a paradox at the heart of modern parentage law. In the quest to sidestep relational complexity in favour of the simple biotruth story, legal parentage has become only more complex and less coherent. The result is a dual‐track system, where the legal parentage of heterosexually conceived children is assumed to reflect their genetic parentage (and vice versa) while the legal parentage of ART‐conceived children depends on a series of technical exceptions transcribing donors and surrogates out of, and non‐biogenetic parents into, the position of biogenetic parents. Research has tended to focus on the complexities for legal parentage of ART‐conceived children. Yet the judgments examined in this study indicate that there is also a significant group of heterosexually‐conceived children who are poorly served by the current model of legal parentage. For disputed paternity children, however, there is currently very little space within the legal structure for parties or judges to craft solutions which address the four functions currently bound up within legal parentage. Currently, a child’s interest in maintaining a stable legal kinship identity and legal relationships with the people she regards and relies on as parents tends to be pitted against, and often sacrificed for, the child’s parallel interest in access to information about their genetic origins. Given that
7 Natacha Salomé Lima, 'Narrative Identity in Third Party Reproduction: Normative Aspects and Ethical Challenges' (2018) 15 Bioethical Inquiry 57, 65.
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Chapter Seven – Conclusion these cases are almost invariably brought by the parents,8 it may be that this stability is effectively being sacrificed for the interests of parents in disputing the child’s existing legal parentage for other purposes – such as to end their economic responsibility for the child or to attempt to block a presumed father’s default parental responsibility and claims for parenting orders. Within the current structure, courts can provide misattributed paternity children with access to their origins information or stability around their legal kinship identity, but not both. Either orders for parentage testing are refused (leaving the child’s legal kinship identity stable but genetic origins uncertain),9 or parentage testing is ordered, with a significant chance that it will retrospectively destabilise the child’s legal identity and relationships. As Peter de Cruz notes in the UK context, current discussions of these two functions within legal parentage structure them as competing interests, ‘English law also recognizes the two opposing views that apply to this difficult issue: that the child has a right to know its origins; and the competing right of the child to have the stability of his or her family protected’.10 In the US, Harris has argued that judges need to be empowered with the discretion to determine whether a change to the child’s legal parentage is in the child’s best interests.11 Greater flexibility and fragmentation of legal parentage cannot guarantee a less traumatic outcome for children at the heart of these disputes. It would, however, give judges more freedom to hear children’s voices and to prioritise children’s interests in their own origins information and legal kinship identity. Sociological research has shown that misattributed paternity, while rare, occurs in a wide variety of circumstances.12 Where a presumed father and / or his kin has had little to do with a child, having him removed as a legal parent is unlikely to have any significant impact on the child. In many
8 In none of the cases studied was it the child themselves who had initiated proceedings, though in a small number of matters under the SoC Acts, an adult child was a respondent in the proceedings. See, eg, Piggott and Harrex [2000] TASSC 72. 9 See, eg, Hadley & Pock [2011] FMCAfam 117 (Roberts FM). 10 Peter De Cruz, Family Law, Sex and Society: A Comparative Study of Family Law (Routledge, 2010) 217. 11 Leslie J Harris, 'A New Paternity Law for the Twenty‐First Century: Of Biology, Social Function, Children's Interests and Betrayal' (2007) 44(2) Willamette Law Review 297, 300. 12 Lyn Turney, 'Paternity Secrets: Why Women Don't Tell' [227] (2005) 11(2) Journal of Family Studies 227, 227.
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Chapter Seven – Conclusion other situations, however, the child regards the presumed father as a parent, and may have formed a strong attachment to him. Clearly, law cannot resolve the difficulties surrounding disputed paternity on its own. Ultimately, children’s wellbeing in such situations will depend on the ability of parents to focus on the needs of their living, breathing child, rather than the hypothetical genetically‐related child they had imagined or the pain of betrayal. In the tumultuous emotional fall‐out of a negative DNA test, it may be that the ‘borne or begotten’ common law interpretation of ‘parent’ undermines the parental status of the presumed father and provides a social norm for presumed fathers to break off their connection with their child. This is an opportune moment, then, to re‐think parentage law and ask how long it should cling to a story which, on closer examination, is neither simple, scientific, nor child‐centred.
XX RE‐CONCEIVING OF LEGAL PARENTAGE AS A STATUS – AND AS AN ASPECT OF LEGAL PERSONHOOD
When we understand legal parentage not as a truth but as a status, a critical space is created between the status as a legal mechanism and the complex, messy truths about who is a parent – truths too detailed, complex and dynamic for law to ever perfectly reflect. By admitting that legal parentage is a question of legal status, then it is possible to decide it by openly weighing up the significance of various considerations and the relevance of different types of knowledge – and to put children and their wellbeing at the centre of those considerations. Naffine suggests that ‘[t]he legal person is better approached and deployed as a legal fiction which can be flexibly adapted to a wide variety of beings and things, according to the needs of justice’.13 As with Naffine’s notion of the legal person as a legal fiction, it makes sense to treat ‘legal parent’ as a legal – rather than a metaphysical – category, allowing for more transparent policy choices about the criteria for entry into that legal category. If, as Naffine suggests, we consider the ‘work’ which the definition of parent is required to perform in law, then we may be able to hold in our heads what
13 Ngaire Naffine, 'Author's Response to the Commentators ‐ Book Symposium: Ngaire Naffine, Law's Meaning of Life: Philosophy, Religion, Darwin and the Legal Person' (2010) 35 Australian Journal of Legal Philosophy 147, 149.
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Chapter Seven – Conclusion may seem like two conflicting thoughts. We can understand ‘legal parent’ as an mechanism of law, in a Legalistic sense, while considering which ‘important defining attribute[s]’ of human parent‐child relationships that mechanism should reflect in a given context.14 Which attributes (and therefore, which metaphysical approach) we prioritise may depend on law’s purpose in the circumstances, and which aspect of the parent‐child reality is relevant to the problem law seeks to resolve. If the purpose is to provide the child with economic support, a Rationalist approach may be appropriate (ie making someone liable for child support where they have voluntarily assumed responsibility for a child or acquiesced in the child’s reliance on them as a parent). If the purpose is to provide origins information to enable a child to make informed decisions about medical treatment and romantic partners, a Naturalistic approach may be required, identifying the people who have contributed genetically or gestationally to the child’s conception and birth. Treating legal parentage as a status also means it can be understood as a form of personal jurisdiction around which rights, obligations, duties and honours are organised.15 Dignity is one of the side‐effects of this jurisdiction of the self – part and parcel of legal personhood and the ability of legal persons to make decisions for themselves, including regarding how they identify, which relationships are significant to them and how their personal information is managed. Dignity in this sense might not necessarily mean one is autonomous, but that others respect and if necessary, support one’s understanding of oneself and one’s identity. For a terminally ill person, ‘dignity‐sustaining care’ is designed to afford ‘choice, control, respect, confidentiality and comfort to people who are dying’.16 For a patient with early‐stage dementia, ‘Dignity Therapy’ aims to support the patient in recording a lifestory which can continue to give carers and family context to their behaviours and
14 Ngaire Naffine, Law's Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Hart Publishing, 2009) 22. 15 Shaunnagh Dorsett and Shaun McVeigh, Jurisdiction (Taylor & Francis and Routledge, 2012) 87, 83. 16 B Joan Yalden and Brendan McCormack, 'Constructions of Dignity: A Pre‐Requisite for Flourishing in the Workplace?' (2010) 5 International Journal of Older People Nursing 137, 138.
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Chapter Seven – Conclusion concerns as the patient starts to lose their capacity to give that context themselves.17 For a transgender person, the European Court of Human Rights has found that the ‘respect for human dignity and human freedom’ which is the ‘very essence’ of the European Charter of Human Rights entitles individuals to an autonomous gender identity.18 To be mis‐gendered, or for people to persistently mis‐pronounce one’s name is an affront to one’s dignity, a micro‐aggression at the boundary by which we differentiate ourselves and relate and connect to others. Likewise, identification as a child of someone, or as a parent of someone, is a relational form of identification whereby ‘one's sense of self is mediated through dialogical relations with others’.19 To dismiss the relational knowledge of a misattributed father and ‘his’ child of their familial relationship to one another as a lie, is therefore an affront to the dignity of them both. Within the hierarchical system of knowledge which legitimates DNA testing as ‘the truth’ regarding parent‐child relationships (at least until re‐written by an adoption order or statute ‘deeming’ an intended parent to be a legal parent), misattributed fathers suffer the indignity of being ‘cuckolded’ – their role and connection with their partner and child supposedly revealed to be an illusion. In contrast, in a system where authoritative knowledge of legal parentage is horizontally distributed, law might give the child and those who have parented them the dignity of hearing their relational knowledge about the quality and significance of the relationship before making any changes to the child’s legal kinship identity. Disputed paternity children may, like ‘late discoverers’ of adoption and donor‐ conception, already be experiencing trauma and loss of trust as a result of the late discovery of their genetic origins.20 For their legal identity to be re‐written without their input, and sometimes to further other people’s objectives (such as ceasing child support,
17 Bridget Johnston et al, 'Living Well with Dementia: Enhancing Dignity and Quality of Life, Using a Novel Intervention, Dignity Therapy' (2016) 11 Journal of Older People Nursing 107. 18 Van Kück v Germany (2003) 37 EHRR 51 [69], discussed in Michael O’Flaherty and John Fisher, 'Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles' (2008) 8 Human Rights Law Review 209, 221. 19 Kim Atkins, 'Re Alex: Narrative Identity and the Case of Gender Dysphoria' (2005) 14 Griffith Law Review 1, 7. 20 Helen Riley, Identity and Genetic Origins: An Ethical Exploration of the Late Discovery of Adoptive and Donor – Insemination Offspring Status (Queensland University of Technology, 2012) 155‐156.
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Chapter Seven – Conclusion or undermining a misattributed father’s efforts for parenting orders), may aggravate that trauma and rob the person most affected of any agency in the process. To recover ‘an agentive identity’, disputed paternity children and adults may need not just access to their genetic origins information, but also a say on whether (or to what extent) their legal kinship identity should be changed.21 Creating a distinct space for the recording of origins information as personal information would liberate legal kinship identity to function cleanly as a legal status whose purpose is to secure the child’s relationships with the adults whom that child regards and relies on as parents.22 By unbundling the distinct functions within legal parentage, courts would be free to address each of these functions in a child‐centred way, allowing for ‘a range of legally recognised parental figures in a child’s life, not all of whom necessarily have the full status of legal parent.23 To determine parentage for each distinct purpose may make some determinations more complex, but this is worthwhile if it enables courts (and those operating in the shadow of the law) to better craft solutions for children with complex family situations. A next step in developing a more responsive parentage law might involve engaging more broadly with stakeholders about the core functions which we expect legal parentage to serve for children, and whether we need more than one mechanism or status to serve those functions. As Harman FM put it in Knightley & Brandon:
The new millennium screams out for a conversation, not only through the jurisprudence of the Court but within the broader community and academia, focused around an embracive and inclusive definition of the terms “parent” and “family”.24
21 Ibid 142. 22 Naomi Cahn suggests a model in the donor conception context which ‘can affirm the integrity and privacy of families, however they are formed, while also recognizing the significance of understanding and connecting to one’s genetic origins’ Naomi Cahn, 'The New Kinship' (2012) 100 The Georgetown Law Journal 367, 429. 23 Philip Bremner, Collaborative Co‐Parenting: A Comparative Study of the Legal Response to Polyparenting in Canada and the UK (University of Exeter, 2015) 20. 24 Knightley & Brandon [2013] FMCAfam 148 (1 February 2013) [47] (Harman FM).
333
Bibliography
Bibliography
A. Articles/Books/Reports
Abrams, Kathryn, 'Legal Feminism and the Emotions: Three Moments in an Evolving Relationship' (2005) 28 Harvard Journal of Law & Gender 325
Alexander, Kristine, 'Can the Girl Guide Speak? The Perils and Pleasures of Looking for Children’s Voices in Archival Research' (2012) 4 Jeunesse: Young People, Texts, Cultures 132
Alexander, Pamela C, 'Childhood Trauma, Attachment, and Abuse by Multiple Partners' (2009 ) 1 ‐Psychological Trauma: Theory, Research, Practice, and Policy 78
Allan, Sonia, Submission No 13 to NSW Legislative Assembly Law and Safety Committee, Inquiry into Inclusion of donor details on the register of births, 15 December 2011
Anderlik, Mary and Mark Rothstein, 'DNA‐Based Identity Testing and the future of the family: A Research Agenda' (2002) 28 American Journal of Law & Medicine 215
Appleby, John B and Anja J Karnein, 'On the moral importance of genetic ties in families' in Susanna Graham et al (eds), Relatedness in Assisted Reproduction (Cambridge UP) 79
Arcabascio, Catherine, 'Chimeras: Double the DNA‐Double the Fun for Crime Scene Investigators, Prosecutors, and Defense Attorneys' (2007) 40 Akron Law Review 435
Archie, Elizabeth A and Jenny Tung, 'Social behavior and the microbiome' (2015) 6 Current Opinion in Behavioral Sciences 28
Arnott, Bronia and Elizabeth Meins, 'Continuity in mind‐mindedness from pregnancy to the first year of life' (2008) 31 Infant Behavior and Development 647
Atkins, Kim, 'Re Alex: Narrative Identity and the Case of Gender Dysphoria' (2005) 14 Griffith Law Review 1
Attorney‐General's Department, A maintenance agency for Australia: the Report of the National Maintenance Inquiry, (Australian Government Publishing Service, 1984)
Australian Bureau of Statistics, Australian Social Trends (1998)
Australian Council of Social Services, Supporting Children: ACOSS Submission to the Cabinet Sub Committee on Child Maintenance, Australian Council of Social Services No ACOSS Paper No. 2 (1986)
Bagshaw, Dale 'Reshaping Responses to Children When Parents are Separating: Hearing Children's Voices in the Transition' (2007) 60 Australian Social Work 450
334 Bibliography
Bailey‐Harris, Rebecca, 'Child Support: Is the Right the Wrong One ‐ A Comment on Parker' (1992) 6 International Journal of Law & Family, 169
Bainham, Andrew, 'What is the point of birth registration?' (2008) Child and Family Law Quarterly 449
Baird, Barbara, 'Child politics, feminist analyses' (2008) 23 Australian Feminist Studies 291
Baker, Katharine K, 'Bionormativity and the Construction of Parenthood' (2007‐2008) 42 Georgia Law Review 649
Baker, Katherine, 'Bargaining or Biology? The History and Future of Paternity Law and Parental Status' (2004) 14 (1) Cornell Journal of Law & Public Policy
Bala, Nicholas et al, 'Children's Voices in Family Court: Guidelines for Judges Meeting Children' (2013) 47 Family Law Quarterly 379
Bala, Nicholas and Patricia Herbert, 'Views, Perspectives and Experiences of Children in Family Law Cases' (Research Paper, Queen's University Faculty of Law, 2016)
Bala, Nicholas and Meaghan Thomas, Legal Studies Research Paper Series, Who is a "Parent"? "Standing in the Place of a Parent" & Canada's Child Support Guidelines s.5, Queen's Faculty of Law No Accepted Paper No. 07‐11 (2007)
Baran, A and R Pannor, Lethal Secrets: The Shocking Consequences of Unsolved Problems of Artifical Insemination (Warner, 1989)
Paula D Baron, 'In the Name of the Father: the Paternal Function, Sexuality, Law and Citizenship' (2006) 37Victoria University of Wellington Law Review 307
Bartholet, Elizabeth, 'Guiding Principles for Picking Parents' (2004) 27 Harvard Women's Law Journal 323
Basser, Lee Ann, 'Human Dignity' in Marcia H Rioux, Lee Ann Basser and Melinda Jones (eds), Critical Perspectives on Human Rights and Disability Law (Brill, 2011) 117‐136
Baylis, Francoise, 'The Self in Situ: A Relational Account of Personal Identity' in Jocelyn Downie and Jennifer J Llewellyn (eds), Being Relational: Reflections on Relational Theory and Health Law (University of British Columbia Press, 2012) 109‐131
Bayne, Tim and Avery Kolers, 'Towards a Pluralist Account of Parenthood' (2003) 17(3) Bioethics 221
Beeson, Diane, Patricia Jennings and Wendy Kramer, 'Offspring searching for their sperm donors: how family type shapes the process ' (2011) 26 Human Reproduction 2415
Birnbaum, Rachel and Michael Saini, 'A Qualitative Synthesis of Children’s Participation in Custody Disputes' (2012) 22 Research on Social Work Practice 400
335 Bibliography
'Birth Certificate Content Review', New South Wales Registry of Births, Deaths and Marriages
Births, 2010, Births, 2010, Australian Bureau of Statistics No 3301.0 (2010)
Blake, Lucy et al, '‘I Was Quite Amazed’: Donor Conception and Parent‐Child Relationships from the Child's Perspective' (2014) 28 Children & Society 425
Blake, Lucy et al, 'Families created by assisted reproduction: Children's Perspectives' in Susanna Graham et al (eds), Relatedness in Assisted Reproduction (Cambridge University Press, 2014) 251
Blyth, Eric et al, 'Donor‐conceived people's views and experiences of their genetic origins: A critical analysis of the research evidence' (2012) 19 Journals, Journal of Law and Medicine 769
Bosisio, Roberta, 'Children’s Right to Be Heard: What Children Think' (2012) 20 International Journal of Children’s Rights 141
Boyd, Susan B, 'Gendering Legal Parenthood: Bio‐genetic ties, intentionality and responsibility' [63] (2007) 25 Windsor Yearbook of Access to Justice 63
Boyd, Susan B, 'Autonomy for Mothers? Relational Theory and Parenting Apart' (2010) 18 Feminist Legal Studies 137
Brandt, Reuven, 'Why Disclosure of Genetic Ancestry in Misattributed Paternity Cases Should Be Treated Differently From Disclosure in Adoption and Gamete Donation' (2013) 13(5) The American Journal of Bioethics 58
Brooks, Rob, 'What are the chances that your dad isn’t your father?' (2014) The Conversation <
Cabinet Subcommittee on Maintenance, Parliament of Australia, Child Support ‐ A discussion on child maintenance (Australian Government Publishing Service, 1986)
Cahn, Naomi, 'Legal parent versus biological parent: The impact of disclosure' (2012) 19 Journal of Law and Medicine 790.
Cahn, Naomi, 'The New Kinship' (2012) 100 The Georgetown Law Journal 367
Carbone, June 'The Legal Definition of Parenthood: Uncertainty at the Core of Family Identity' (2005) 65 Louisiana Law Review 1295
Carbone, June and Naomi Cahn, 'Which Ties Bind ‐ Redefining the Parent‐Child Relationship in an Age of Genetic Certainty' (2003) 11 William & Mary Bill of Rights Journal 1011
Carson, Rachel et al, Children and young people in separated families: Family law system experiences and needs (Australian Institute of Family Studies, 2018)
336 Bibliography
Carsten, Janet, 'Connections and Disconnections of Memory and Kinship in Narratives of Adoption Reunions in Scotland' in Janet Carsten (ed), Ghosts of Memory: Essays on Remembrance and Relatedness (Blackwell, 2007) 83
Casey, Polly et al, 'Families Created by Donor Insemination: Father –Child Relationships at Age 7' (2013) 75 Journal of Marriage and Family 858
Parkinson, Patrick and Judy Cashmore, The Voice of a Child in Family Law Disputes (Oxford University, 2008)
Cass, Bettina, Social Security Review, Income Support of families with children, Australian Government Publication Service No Issues Paper No 1 (1986)
Chang, Pepe Lee and Diana Buccafurni‐Huber, 'On the Moral Asymmetry of Gametic Contributions,' (2013) 13(5) The American Journal of Bioethics 56
Chapman, Amy and Sue Saltmarsh, 'The politics of Normative Childhoods and Non‐ Normative Parenting: a response to Cristyn Davies and Kerry Robinson' (2013) 14 Contemporary Issues in Early Childhood 60
Child Support Consultative Group, Child Support ‐ Formula for Australia, Child Support Consultative Group, No (1988)
Chisholm, Richard, 'Children's Participation in Family Court Litigation' (1999) 13 Australian Journal of Family Law 1
Chisholm, Richard, 'Grandparents and Children's Cases in the Family Court' (2002) 24 Australian Law Reform Commission Reform Journal 53
Chisholm, Richard, 'Parentage: Some testing problems ' (2010) 24 Australian Journal of Family Law 242
Clarke, Adele E et al, 'Biomedicalising genetic health, diseases and identities' in Paul Atkinson, Peter Glasner and Margaret Lock (eds), Handbook of genetics and society: Mapping the Genomic Era (Routledge, 2009) 21‐40
Clarke, Gerard et al, 'Minireview: Gut Microbiota: The Neglected Endocrine Organ' (2014) 28 Molecular endocrinology 1221
Collier, Richard, ''Waiting Till Father Gets Home': the Reconstruction of Fatherhood in Family Law' (1995) 4 Social & Legal Studies 5
Collier, Richard, 'A Hard Time to Be a Father?: Reassessing the Relationship between Law, Policy, and Family (Practices)' (2001) 28 Journal of Law and Society 520
Collier, Richard and Sally Sheldon, 'Fathers' Rights, Fatherhood and Law Reform ‐ International Perspectives' in Richard Collier and Sally Sheldon (ed), Fathers' Rights Activism and Law Reform in Comparative Perspective (Hart Publishing, 2006) 1‐26
337 Bibliography
Collier, Richard and Sally Sheldon, Fragmenting Fatherhood: A Socio‐Legal Study (Hart, 2008)
Collier, Richard, 'Masculinities, Law, and Personal Life: Towards a New Framework for Understanding Men, Law, and Gender' (2010) 33 Harvard Journal of Law & Gender 431.
Collier, Richard, 'Men, gender and fathers' rights 'after legal equality' ‐ New formations of rights and responsibility in family justice' in Robert Leckey (ed), After Legal Equality: Family, Sex, Kinship (Taylor and Francis, 2014) 59‐73.
Coupet, Sacha M, 'Ain't I a Parent?: Exclusion of Kinship Caregivers from the Debate over Expansions of Parenthood' (2010) 34 NYU Review of Law & Social Change 595.
Cox, Elizabeth , Lynne Moggach and Tina Smith, 'Participation And Decision Making In Older Age Adoption' (2007) 19 developing practice 16
Crisp, Alastair et al, 'Expression of multiple horizontally acquired genes is a hallmark of both vertebrate and invertebrate genomes' (2015) 16 Genome Biology 50
Cross, Rupert, ‘Blood tests and bastardy’ The Listener (London) 6 October 1966, 493 [1966])
Dahms, John V, 'The Johannine Use of Monogenes Reconsidered' (1983) 29 New Testament Studies 222
Daly, Aoife, 'No Weight for "Due Weight"? A Children's Autonomy Principle in Best Interests Proceedings' (2018) 26 International Journal of Children’s Rights 61
Daniels, Dale, Background paper: The Child Support Scheme, Parliamentary Research Service No (1990)
Daniels, Dale, 'Social Security payments for people caring for children, 1912‐2008: a chronology' (Social Policy Section, Parliamentary Library, Parliament of Australia, 2009)
De Cruz, Peter, Family Law, Sex and Society: A Comparative Study of Family Law (Routledge, 2010)
De Facto Relationships, De Facto Relationships, New South Wales Law Reform Commission No Report 36 (1983)
De Stoop, Dominique, 'Human Artificial Insemination and the Law in Australia' (1976) 50 Australian Law Journal 298
Dempsey, Deborah, 'Donor, Father or Parent? Conceiving Paternity in the Australian Family Court' (2004) 18 International Journal of Law, Policy and the Family 76
Dewar, John, 'The Normal Chaos of Family Law' (1998) 61 Modern Law Review 467
338 Bibliography
Dewar, John, 'Family Law and Its Discontents' (2000) 14 International Journal of Law, Policy and the Family 59 to 85
Alison Diduck, 'The Unmodified Family: The Child Support Act and the Construction of Legal Subjects' (1995) 22(4) Journal of Law and Society 527.
Diduck, Alison, Law's Families (Lexis Nexis, 2003)
Diduck, Alison, ''If only we can find the appropriate terms to use the issue will be solved': Law, Identity and Parenthood' [458] (2007) 19(4) Child and Family Law Quarterly 458
Diduck, Alison, 'Autonomy and vulnerability in family law: the missing link' in Julie Wallbank and Jonathan Herring (eds), Vulnerabilities, Care and Family Law (Routledge, 2014).
Dolgin, Janet L, ‘Choice, tradition, and the new genetics: the fragmentation of the ideology of family’ (2000) 32 Connecticut Law Review 523
Dolgin, Janet L, 'Just a Gene: Judical Assumptions about Parenthood' (1993) 40 UCLA Law Review 637
Dolgin, Janet L, 'Biological Evaluations: Blood, Genes and Family' (2008) 41 Akron Law Review 347
Dorsett, Shaunnagh and Shaun McVeigh, Jurisdiction (Taylor & Francis and Routledge, 2012)
Dowd, Nancy E, 'From Genes, Marriage and Money to Nurture: Redefining Fatherhood' in Mark A Rothstein, Thomas H Murray and Gregory E Kaebnick (eds), Genetic Ties and the Family: The Impact of Paternity Testing on Parents and Children (Johns Hopkins University Press, 2005) 81‐93
Draper, Heather, 'Paternity fraud and compensation for misattributed paternity' (2007) 33(8) Journal of Medical Ethics 475
Draper, Heather and Jonathan Ives, 'Paternity testing: a poor test of fatherhood' (2009) 31 Journal of Social Welfare and Family Law, 407
Deanne Drummond, 'Kupai Omasker – Incorporating Traditional Adoption Practices into Australia’s Family Law System' (Paper presented at the World Congress on Family Law and Children’s Rights, Sydney, 17 March, 2013)
Edwards, Jeanette, 'Undoing Kinship' in Susanna Graham et al (eds), Relatedness in Assisted Reproduction (Cambridge University Press, 2014) 45
Edwards, Jeanette, 'Donor Conception and (Dis)closure in the UK: Siblingship, Friendship and Kinship' (2015) 65 Sociologus 101
339 Bibliography
Edwards, Meredith, 'Child Support: Assessment, Collection and Enforcement Issues and Possible Directions for Reform' (1986) 6 Windsor Year Book of Access to Justice 93 to 140
Edwards, Meredith, Patricia Harper and Margaret Harrison, 'Child Support: Public or Private Duty?' (1985) 4(4) Australian Society 18
Eekelaar, John, Family Law and Personal Life (Oxford University Press, 2007)
Ewing, Jan et al, 'Children's Voices: Centre‐Stage or Sidelined in out‐of‐Court Dispute Resolution in England and Wales' (2015) 27 Child and Family Law Quarterly 43
Falk, Raphael, Genetic Analysis: A history of genetic thinking (Cambridge University Press, 2011)
Family Court of Australia, Federal Circuit Court and Family Court of Western Australia, 'Australian Standards of Practice for Family Assessments and Reporting' 2 February 2015)
Family Law Council, Report on Maintenance Assessment and Collection (1985)
Family Law Council, Report on Parentage and the Family Law Act (2013)
Family Law Council, Improving the Family Law system for Aboriginal and Torres Strait Islander Clients, Report to the Attorney‐General (2012)
Faulk, Karen Ann and Sandra Brunnegger, 'Introduction: Making Sense of Justice' in Sandra Brunnegger and Karen Ann Faulk (eds), A Sense of Justice: Legal Knowledge and Lived Experience in Latin America (Stanford University Press, 2016) 1
Fehlberg, Belinda and Juliet Behrens, Australian Family Law: The Contemporary Context (Oxford, 2008)
Fehlberg, Belinda and Mavis Maclean, 'Child Support Policy in Australia and the United Kingdom: Changing Priorities but a similar tough deal for children?' (2009) 23 International Journal of Law, Policy and the Family 1
Fehlberg, Belinda et al, Australian Family Law: The Contemporary Context (Oxford University Press, 2 ed, 2015)
Fellows, Mary Louise, 'A Feminist Interpretation of the Law of Legitimacy' (1998) 7 Texas Journal of Women & the Law 195
Field, Rachael et al, 'Family Reports and Family Violence in Australian Family Law Proceedings: What Do We Know?' (2016) 25 Journal of Judicial Administration 212
Fineman, Martha and Isabel Karpin, Mothers in law: feminist theory and the legal regulation of motherhood (Columbia University Press, 1995)
340 Bibliography
Fineman, Martha, The Neutered Mother, the Sexual Family, and other Twentieth Century Tragedies (Routledge, 1995)
Fineman, Martha, The Autonomy Myth : a theory of dependency (New Press, 2004)
Fineman, Martha A., 'The Vulnerable Subject: Anchoring Equality in the Human Condition' (2008) 20(1) Yale Journal of Law & Feminism 1
Fineman, Martha Albertson, 'The Sexual Family (2009)' in Martha Albertson Fineman, J E Jackson and A P Romero (eds), Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations (Ashgate, 2009)
Fineman, Martha Albertson, 'Feminisms and Masculinities: Questioning the Lure of Multiple Identities' in Martha Albertson Fineman and Michael Thomson (eds), Exploring Masculinities: Feminist Legal Theory Reflections (Ashgate, 2013)
Finlay, H A and A Bissett‐Johnson, Family Law in Australia (Butterworths, 1972)
Finlay, Henry, To Have But Not To Hold: A history of attitudes to marriage and divorce in Australia 1858‐1975 (Federation Press, 2005)
Finlay, Henry Family Law in Australia (Butterworths, 3rd ed ed, 1983)
Fisher, D E, 'Serological Evidence and the Question of Paternity' (1968‐1969) 14 University of Queensland Law Journal 14
Fletcher, Ruth, Marie Fox and Julie McCandless, 'Legal Embodiment: Analysing the Body of Healthcare Law' (2008) 16 Medical Law Review 321
Fonagy, Peter et al, 'Why are we interested in attachments?' in Paul Holmes and Steve Farnfield (eds), The Routledge Handbook of Attachment: Theory (Routledge, 2014) 31
Fortin, Jane, 'Children's right to know their origins ‐ too far, too fast?' (2009) 21 Child and Family Law Quarterly 336
Foucault, Michel, The history of sexuality, Volume 1, An introduction (Robert Hurley trans, 1979 ed) [trans of: Histoire de la sexualité] (Allen Lane, 1979)
Frost, Ginger, '"When is a parent not a parent?' Custody and Illegitmacy in England, 1860‐1930' (2013) 6 Journal of the History of Childhood and Youth 236
Fuscaldo, Giuliana, 'Genetic Ties: Are They Morally Binding? ' ( 2006) 20 Bioethics 64
Galton, Francis, Finger Prints (Macmillan & Co, 1892)
Genovese, Ann, 'Family Histories ‐ John Hirst v. Feminism, in the Family Court of Australia' (2006) 21(50) Australian Feminist Studies 173
Genovese, Ann, 'How to Write Feminist Legal History' in Diane Kirkby (ed), Past Law, Present Histories (ANU E‐press, 2012) 139
341 Bibliography
Gilding, Michael, 'Rampant Misattributed Paternity: The Creation of an Urban Myth' (2005) 13 People and Place 1
Golombok, Susan, 'New Family Forms: Children raised in solo mother families, lesbian mother families and in families created by assisted reproduction' in L Balter and Tanis‐ LeMonda (eds), Child Psychology: A Handbook of Contemporary Issues (Psychology Press, 1999)
Golombok, Susan et al, 'Children Conceived by Gamete Donation: Psychological Adjustment and Mother‐Child Relationships at Age 7' (2011 ) 25 Journal of Family Psychology 230
Golombok, Susan et al, 'Children born through reproductive donation: a longitudinal study of psychological adjustment' (2013) 54(6) Journal of Child Psychology and Psychiatry 653
Golombok, Susan, Modern Families: Parents and Children in New Family Forms (Cambridge University Press, 2015)
Golombok, Susan and Fiona Tasker, 'Socioemotional Development in Changing Families' (2015) 3 Handbook of Child Psychology and Developmental Science
Golombok, Susan, 'Letter to the Editor: Disclosure and donor‐conceived children' (2017) 32 Human Reproduction 1532
Government Committee on the Reassessment of Parenthood (Staatscommissie Herijking Ouderschap), 'Child and Parents in the 21st Century' Government of the Netherlands, 2017)
Graycar, Reg and Jenny Earle, 'A new dependence' (1987) February Australian Society 37
Graycar, Reg, 'Family Law and Social Security in Australia: The Child Support Connection' (1989) 3 Australian Journal of Family Law 70
Graycar, Reg, 'Law Reform by Frozen Chook: Family Law Reform for the New Millenium?' (2000) 24 Melbourne University Law Review 737
Graycar, Reg and Jenny Morgan, The Hidden Gender of Law (Federation Press, 2nd ed, 2002)
Graycar, Reg and Jenny Morgan, 'Feminist Legal Theory and Understandings of Equality: OneStep Forward or Two Steps Back?' (2006) 28 Thomas Jefferson Law Review 399
Graycar, Reg and Jenni Millbank, 'From Functional Family to Spinster Sisters: Australia's Distinctive Path to Relationship Recognition' (2007 ) 24 Washington University Journal of Law and Policy 121
342 Bibliography
Graycar, Reg, 'Family Law Reform in Australia, or Frozen Chooks Revisited Again?' (2012) 13.1 Theoretical Inquiries in Law 241
Greeff, JM and JC Erasmus, 'Three hundred years of low non‐paternity in a human population' (2015) 115 Heredity 396
Green, Jonathan et al, 'A new method of evaluating attachment representations in young school‐age children: The Manchester Child Attachment Story Task' (2000) 2 Attachment & Human Development 48
Greenfell, Laura and Anne Hewitt, 'Gender Regulation: Restrictive, Facilitative or Transformative Laws' (2012) 34 Sydney Law Review 761
Griffin, Gabriele, 'Identity matters: donor offspring's narratives of self and their implications for epigenetic debates' (2015) 29 Textual Practice 453
Haack, Susan, 'Truth, Truths, "Truth" and "Truths" in the law' (2003) 26 Harvard Journal of Law & Public Policy 17
Haack, Susan, Defending Science ‐ within reason: Between Scientism and Cynicism (Prometheus, 2007)
Haack, Susan, Evidence Matters: Science, Proof, and Truth in the Law (Cambridge University Press, 2014)
Hambly, David and J Neville Turner, Cases and Materials on Australian Family Law (Law Book Company, 1971)
Hancock, Linda, 'Reforming the Child Support Agenda: Who Benefits?' [20] (1998) 12 Just Policy 20
Hand, Learned ' Historical and Practical Considerations regarding expert testimony' (1901) 15 Harvard Law Review 40
Handler, Philip, 'Legal History' in Dawn Watkins and Mandy Burton (eds), Research Methods in Law (Taylor & Francis, 2013)
Hargreaves, Katrina and Ken Daniels, 'Parents Dilemmas in Sharing Donor Insemination Conception Stories with their Children' (2007) 21 Children & Society 420
Harris, Leslie J, 'A New Paternity Law for the Twenty‐First Century: Of Biology, Social Function, Children's Interests and Betrayal' (2007) 44(2) Willamette Law Review 297
Harris, Leslie Joan 'The Basis for Legal Parentage and the clash between custody and child support' (2009) 42 Indiana Law Review 611
Harris, Michele, An Evaluation of Victoria Legal Aid’s Kids Talk Program 2007–2010 (Victoria Legal Aid, 2012)
343 Bibliography
Harrison, Margaret, 'Introduction' in Peter McDonald (ed), Settling up : property and income distribution on divorce in Australia (Australian Institute of Family Studies, 1986)
Harrison, Margaret, 'Maintenance, custody and access' in Peter F McDonald (ed), Settling up : property and income distribution on divorce in Australia (Prentice‐Hall for the Australian Institute of Family Studies, 1986) 259‐278
Harrison, Margaret, 'Book Review: To Have but Not To Hold.. A History of Attitudes to Marriage and Divorce in Australia 1858‐1975 by Henry Finlay' (2006) 30 Melbourne University Law Review 594
Harvison Young, Alison, 'Reconceiving the Family: Challenging the Paradigm of the Exclusive Family' (1998) 6 American University Journal of Gender Social Policy and Law 505
Harvison Young, Alison, 'This Child Does Have 2 (or More) Fathers: Step‐Parents and Support Obligations' (2000) 45 McGill Law Journal 107
Hayes, Alan, 'Social science and family law: From fallacies and fads to the facts of the matter' in Alan Hayes and Daryl Higgins (eds), Families, policy and the law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014) 283‐295
Herring, Jonathan, 'Farewell Welfare?' (2005) 27 Journal of Social Welfare and Family Law 159
Herring, Jonathan, 'Relational autonomy and family law' in Julie Wallbank, Shazia Choudhry and Jonathan Herring (eds), Rights, Gender and Family Law (Routledge, 2009) 257
Herring, Jonathan, Rebecca Probert and Stephen Gilmore, Great Debates in Family Law (Palgrave Macmillan, 2012)
Herring, Jonathan and Charles Foster, '“Please Don’t Tell Me”: The Right Not to Know' (2012) 21 Cambridge Quarterly of Healthcare Ethics 20, 28.
Heydt, Von der, 'The role of the father in early mental development' (1964) 37 British Journal of Medical Psychology 123
Holt, Stephanie, 'The voice of the child in family law: A discussion paper' (2016) 68 Children and Youth Services Review 139
Holub, Linda, The Child Support Agency: A New Era in Child Maintenance? (Public Policy Program, Australian National University, 1989)
Hooker, Leesa, Rae Rae Kaspiew and Angela Taft, Domestic and family violence and parenting: Mixed methods insights into impact and support needs: State of knowledge paper (Australia's National Research Organisation for Women's Safety, 2016)
344 Bibliography
Humphreys, Cathy, Ravi K Thiara and Agnes Skamballis, 'Readiness to Change: Mother‐ Child Relationship and Domestic Violence Intervention' (2011) 41 British Journal of Social Work 166
Hunter, Rosemary, 'Close encounters of a judicial kind: 'hearing' children's 'voices' in family law proceedings' (2007) 19 Child and Family Law Quarterly 283
Inglis, B D, 'The Family, the Law, and the Courts' (1973 ) 47 Australian Law Journal 647
Ives, Jonathan et al, 'Becoming a father/refusing fatherhood: an empirical bioethics approach to paternal responsibilities and rights ' (2008) 3 Clinical Ethics 75
Jackson, Emily, 'What is a Parent?' in Alison Diduck and Katherine O'Donovan (eds), Feminist Perspectives on Family Law (Routledge, 2006) 59‐74
Jacobs, Kristin K, 'If the Genes Don't Fit: An Overview of Paternity Disestablishment Statutes' (2011‐2012) 24 Journal of the American Academy of Matrimonial Law 249
Jacobs, Melanie B, 'When Daddy Doesn't want to be Daddy Anymore: An Argument against paternity fraud claims' (2004) 16(193) Yale Journal of Law and Feminism 193
Jacobs, Melanie B, 'Why Just Two? Disaggregating Traditional Parental Rights and Responsibilities to Recognize Multiple Parents' (2007) 9 Journal of Law & Family Studies 309
Jadva, Vasanti et al, 'The experiences of adolescents and adults conceived by sperm donation: comparisons by age of disclosure and family type' (2009) 24 Human Reproduction 1909
James, Adrian, Allison James and Sally McNamee, 'Turn down the volume? ‐ not hearing children in family proceedings' (2004) 16 Child and Family Law Quarterly 189
James, Allison, 'From the child's point of view: issues in the social construction of childhood' in Catherine Panter‐Brick (ed), Biosocial Perspectives on Children (Cambridge University Press, 1998) 45
James, Allison, 'Parents: A Children's Perspective' in Andrew Bainham, Shelley Day Sclater and Martin Richards (eds), What is a Parent?: A Socio‐legal Analysis (Hart, 1999) 181
Johnson, Louise, Kate Bourne and Karin Hammarberg, 'Donor conception legislation in Victoria, Australia: the "Time to Tell" campaign, donor‐linking and implications for clinical practice' (2012) 19 Journal of Law and Medicine 803
Johnston, Bridget et al, 'Living well with dementia: enhancing dignity and quality of life, using a novel intervention, Dignity Therapy' (2016) 11 Journal of Older People Nursing 107
345 Bibliography
Jordan, Brigitte, 'Authoritative Knowledge and Its Construction' in Robbie E Davis‐Floyd and Carolyn F Sargent (eds), Childbirth and Authoritative Knowledge: Cross Cultural Perspectives (University of California Press, 1997) 55
Kaspiew, Rae, Mothers, Fathers and Parents: The Construction of Parenthood in Contemporary Family Law Decision Making (PhD Thesis, University of Melbourne, 2005)
Kaspiew, Rae et al, Evaluation of the 2006 Family Law Reforms (Australian Institute of Family Studies, 2009)
Kaebnick, Gregory and Thomas H Murray, 'Genetic ties and genetic mixups' (2003) 29 Journal of Medical Ethics 68
Kaebnick, Gregory, 'The Natural Father: Genetic Paternity Testing, Marriage, and Fatherhood' (2004) 13 Cambridge Quarterly of Healthcare Ethics 49
Kaltenborn, Karl‐Franz, 'Individualization, Family Transitions and Children's Agency' (2001) 8(4) Childhood 463
Karen, Robert, Becoming Attached: First Relationships and How they Shape our Capacity to Love (Oxford University Press, 1998)
Kaspiew, Rae et al, Independent Children’s Lawyers Study, Final report (Australian Institute of Family Studies, 2 ed, 2014)
Kazinetz, Tricia 'You Can't Have One without the Other: Why the Legalization of Same Sex Marriage Created a Need for Courts to Have Discretion in Granting Legal Parentage to More than Two Individuals' (2018) 24 Widener Law Review 179
Kelly, Fiona, 'Redefining Parenthood: Gay and Lesbian Families in the Family Court — the Case of Re Patrick' (2002) 16 Australian Journal of Family Law 204
Fiona Kelly, 'Conceptualising the child through an 'ethic of care': lessons for family law' (2005) 1 International Journal of Law in Context 375
Fiona Kelly, '(Re)forming Parenthood: The Assignment of Legal Parentage within Planned Lesbian Families ' (2008) 40 Ottowa Law Review 185
Kelly, Fiona, 'Producing Paternity: The Role of Legal Fatherhood in Maintaining the Traditional Family' (2009) 21 Canadian Journal of Women and the Law 315
Fiona Kelly, Transforming Law's Family: The Legal Recognition of Planned Lesbian Motherhood (UBC Press, 2011)
Kelly, Fiona, 'Multiple‐Parent Families under British Columbia's New Family Law Act: A Challenge to the Supremacy of the Nuclear Family or a Method by Which to Preserve Biological Ties and Opposite‐Sex Parenting' (2014) 47 UBC Law Review 565
346 Bibliography
Kelly, Fiona, 'Parenting outside the normative framework: Australia’s single mother by choice' (2015) 29(2) Australian Journal of Family Law 90
Kelly, Fiona and Deborah Dempsey, 'The family law implications of early contact between sperm donors and their donor offspring' (2016) 98 Family Matters 56
Kelly, Fiona, Hannah Robert and Jennifer Power, 'Is there still no room for two mothers? Revisiting lesbian mother litigation in post‐reform Australian family law' (2017) 31 Australian Journal of Family Law 1
Kelly, Susan E, 'From 'scraps and fragments' to 'whole organisms': Molecular biology, clinical research and post‐genomic bodies' in Paul Atkinson and Peter Glasner (eds), New Genetics, New Identities (Routledge, 2007) 44
Kennedy, Aileen, 'Gender Identity: Reassessing the definition of sex and gender' (2013) 38 Alternative Law Journal 186
Kilty, Madeline, 'Deceitful Non‐Disclosure And Misattributed Paternity' (2010) 11 Australian Journal of Professional and Applied Ethics 132
Kirkman, Maggie, Doreen Rosenthal and Louise Johnson, Telling It Your Way: A Guide for Parents of Donor‐Conceived Adolescents (Infertility Treatment Authority, 2007)
Konrad, Monica, Nameless Relations: Anonymity, Melanesia and Reproductive Gift Exchange Between British Ova Donors and Recipients (Berghahn Books, 2005)
Krause, Harry D, 'Bastards Abroad ‐ Foreign Approaches to Illegitimacy' (1966 ‐ 1967) 15 American Journal of Comparative Law 726
Krause, Harry D, 'Equal Protection for the Illegitimate' (1967) 65 Michigan Law Review 477
Kwok, Emily, Resolving misattributed paternity disputes in the context of family law and the child's best interest University of Sydney, 2013)
Lansdown, Gerison, The Evolving Capacities of the Child, (UNICEF, 2005)
Lasok, Dominik, 'Legitimation, Recognition and Affiliation Proceedings (A Study in Comparative Law and Legal Reform)' (1961) 10 The International and Comparative Law Quarterly 123
Lasok, Dominik, 'Family Law Reform in England' (1967) 8 William and Mary Law Review 589
Lasok, Dominik, 'The Legal Status of the Putative Father' (1968) 17 International and Comparative Law Quarterly 634
Lau, Holning, 'Gender Recognition As a Human Right ' (Legal Studies Research Paper Series University of North Carolina,
347 Bibliography
Law and Safety Committee, NSW Legislative Assembly, Inquiry into Inclusion of donor details on the register of births (2012) October 2012
Law Commission (UK), Blood Tests and the Proof of Paternity in Civil Proceedings, Report No 16 (1968)
Law Reform Committee of South Australia, Eighteenth Report of the Law Reform Committee of South Australia to the Attorney General Relating to Illegitimate Children (1972)
Leckey, Robert, 'Relational Contract and Other Models of Marriage' (2002) 40 Osgoode Hall Law Journal 1
Leckey, Robert, Contexual Subjects: Family, State and Relational Theory (University of Toronto Press, 2008)
Leckey, Robert, 'Book Review: Richard Collier, Men, Law and Gender: Essays on the ‘Man’ of Law, and Richard Collier and Sally Sheldon, Fragmenting Fatherhood: A Socio‐ Legal Study' (2011) 20 Social & Legal Studies 123
Leckey, Robert, 'Law Reform, Lesbian Parenting, and the Reflective Claim' (2011) 20 Social & Legal Studies 331.
Leckey, Robert, 'Two Mothers in Law and Fact' (2013) 21 Feminist Legal Studies 1
Leckey, Robert, After Legal Equality Family, Sex, Kinship (Taylor and Francis, 2014)
Leckey, Robert 'Identity, Law, and the Right to a Dream?' (2015) 38(2) Dalhousie Law Journal 525
Lewis, Myrisha S, 'Biology, Genetics, Nurture and the Law: The expansion of the legal definition of family to include three or more parents' (2016) 16 Nevada Law Journal 745
Li, Z et al, Perinatal Statistics Series no. 25, Australia's mothers and babies 2009, Australian Institute of Health and Welfare Perinatal Epidemiology and Statistics Unit No Cat. no. PER 52 (2011)
Lima, Natacha Salomé, 'Narrative Identity in Third Party Reproduction: Normative Aspects and Ethical Challenges' (2018) 15 Bioethical Inquiry 57
Litherland, John, The Law relating to Maintenance of Wives and Children who are deserted or left without means of support (Law Book Co, 1949)
Logan, Janette, 'Birth Mothers and their Mental Health: Uncharted Territory' (1996) 26 British Journal of Social Work 609
Lorbach, Caroline, National Consumer Advocate, Donor Conception Support Group of Australia Inc. ‘Submission No 7 to NSW Legislative Assembly Law and Safety
348 Bibliography
Committee’, Inquiry into Inclusion of donor details on the register of births, 15 December 2011
Lowe, Georgia et al, 'How should we deal with misattributed paternity? A survey of lay public attitudes' (2017) 8 American Journal of Bioethics ‐ Empirical Bioethics 234
Lowe, Nigel and Mervyn Murch, 'Children's Participation in the Family Justice System ‐ Translating Principles into Practice' (2001) 13 Child and Family Law Quarterly 137
Lynch, Michael, 'Science, truth, and forensic cultures: The exceptional legal status of DNA evidence' (Pt C) (2013) 44 Studies in History and Philosophy of Biological and Biomedical Sciences 60
Lynch, Michael et al, Truth Machine: The Contentious History of DNA Fingerprinting (University of Chicago Press, 2008)
Lynch, Michael and Ruth McNally, 'Forensic DNA databases and biolegality ‐ the co‐ production of law, surveillance technology and suspect bodies' in Paul Atkinson, Peter Glasner and Margaret Lock (eds), Handbook of genetics and society: Mapping the Genomic Era (Routledge, 2009) 283‐301
MacKinnon, Catharine, Feminism Unmodified: Discourses on Life and Law (Harvard University Press, 1987)
Malek, Janet, 'Routine Paternity Testing: Finding the Right Ethical Paradigm' (2013) 13(5) The American Journal of Bioethics 44
McCandless, Julie and Sally Sheldon, 'The Human Fertilisation and Embryology Act (2008) and the Tenacity of the Sexual Family' (2010) 73 Modern Law Review 175
McCandless, 'The Role of Sexual Partnership in UK Family Law ‐ the case of legal parenthood' in Daniela Cutas and Sarah Chan (eds), Families ‐ Beyond the Nuclear Ideal (Bloomsbury Academic, 2012) 12‐33.
McCandless, Julie and Sally Sheldon, 'Genetically Challenged: The determination of legal parenthood in assisted reproduction' in Tabitha Freeman et al (eds), Relatedness in Assisted Reproduction: Families, Origins and Identities (Cambridge UP, 2014) 61
McClelland, Alison and Jenny Trethewey, Child Support: Directions and Conditions for Change ‐ A Submission paper on the report ‘Child Support’ (The Brotherhood of St Laurence, 1987)
McIntosh, Jennifer E, 'Four young people speak about children’s involvement in family court matters' (2009) 15 Journal of Family Studies 98
McIntosh, Jennifer E et al, 'Child‐focused and child‐inclusive divorce mediation: comparative outcomes from a prospective study of postseparation adjustment' (2008) 46 Family Court Review 105
349 Bibliography
McIntosh, Jennifer et al, Post‐separation parenting arrangements and developmental outcomes for infants and children (Attorney‐General’s Department, 2010)
Malek, Janet, 'Routine Paternity Testing: Finding the Right Ethical Paradigm' (2013) 13(5) The American Journal of Bioethics 44
Malmquist, Anna et al, ''A daddy is the same as a mummy’: Swedish children in lesbian households talk about fathers and donors' (2014) 21 Childhood 119
Mantle, Greg et al, 'Whose Wishes and Feelings? Children’s Autonomy and Parental Influence in Family Court Enquiries' (2007) 37 British Journal of Social Work () , 785
Masson, Judith, 'Parenting by Being; Parenting by Doing ‐ In Search of Principles for Founding Families' in J R Spencer and Antje Du Bois‐Pedain (eds), Freedom and Responsibility in Reproductive Choice (Hart Publishing, 2006) 131‐156
Mayo, Marylyn, 'The Legal Status of the AID Child in Australia' (1976) 50 Australian Law Journal 562
Millbank, Jenni, 'Lesbians, Child Custody and the Long Lingering Gaze of the Law' in Susan B Boyd (ed), Challenging the Public/private Divide: Feminism, Law, and Public Policy (University of Toronto Press 1997) 280
Millbank, Jenni, 'From Here to Maternity: A Review of the Research on Lesbian and Gay Families' [541] (2003) 38 Australian Journal of Social Issues 541
Millbank, Jenni, Areas of Federal Law that Exclude Same‐Sex Couples and their Children: Research Paper for the Human Rights and Equal Opportunity Commission’s National Inquiry into Discrimination against People in Same‐Sex Relationships: Financial and Work‐Related Entitlements and Benefits (2006)
Millbank, Jenni, 'Parental Status for Lesbian Mothers having children through assisted conception' (2006) 19 Australian Family Lawyer 6
Millbank, Jenni, 'Recognition of Lesbian and Gay Families in Australian Law ‐ Part Two: Children' (2006) 34 Federal Law Review 205
Millbank, Jenni, 'The Limits of Functional Family: Lesbian Mother Litigation in the Era of the Eternal Biological Family' (2008) 22 International Journal of Law, Policy and the Family 149
Millbank, Jenni, 'De facto relationships, same‐sex and surrogate parents: Exploring the scope and effects of the 2008 federal relationship reforms' (2009) 23 Australian Journal of Family Law 1
Millbank, Jenni, 'From Alice and Evelyn to Isabella: Exploring the Narratives and Norms of 'New' Surrogacy in Australia' (2011) 21 Griffith Law Review 101
Miller, John, 'Considering the best interests of the child in paternity tests' (2011) 49 Law Society Journal 82
350 Bibliography
Minow, Martha, Making all the difference: Inclusion, Exclusion and American Law (Cornell University Press, 1990)
Morgan, David, 'Risk and Family Practices: Acounting for change and fluidity in family life' in Elizabeth B Silva and Carol Smart (eds), The New Family? (Sage, 1999) 13
Mukherjee, Siddhartha, The Gene ‐ an intimate history (Bodley Head, 2016)
Mykitiuk, Roxanne, 'Beyond conception: legal determinations of filiation in the context of assisted reproductive technologies' (2001) 39(4) Osgoode Hall Law Journal 771
Mykitiuk, Roxanne, 'Public Bodies, Private Parts: Genetics in a Post‐Keynsian Era' in Judy Fudge and Brenda Cossman (eds), Privatization, law, and the challenge of feminism (University of Toronto Press, 2002) 311
Natalier, Kristin and Kay Cook, 'The Gendered Framing of Australia's Child Support Reforms' (2013) 27(1) International Journal of Law, Policy and the Family 28
Naffine, Ngaire, 'Who are Law's Persons? From Cheshire Cats to Responsible Subjects' (2003) 66 Modern Law Review 346
Naffine, Ngaire, Law's Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Hart Publishing, 2009)
Naffine, Ngaire, 'Author's Response to the Commentators ‐ Book Symposium: Ngaire Naffine, Law's Meaning of Life: Philosophy, Religion, Darwin and the Legal Person' (2010) 35 Australian Journal of Legal Philosophy 147
Naffine, Ngaire, 'Review Essay: The Liberal Legal Individual Accused: The Relational Case' (2014) 29 Canadian Journal of Law and Society 123
Neale, Bren, Amanda Wade and Carol Smart, '“I just get on with it”: Children’s Experiences of Family Life following Parental Separation or Divorce' (Working Paper No 1, Centre for Research on Family, Kinship & Childhood, University of Leeds, 1998)
Neale, Bren, 'Dialogues with Children: Children, Divorce and Citizenship' (2002) 9 Childhood 455
Neave, Marcia 'The Position of ex‐nuptial children in Victoria' (1976) 10 Melbourne University Law Review 330
Nedelsky, Jennifer, 'Law, Boundaries and the Bounded Self' (1990) 30 Representations 162
Nedelsky, Jennifer, Law's Relations: A Relational Theory of Self, Autonomy and Law (Oxford University Press, 2011)
Nordqvist, Petra 'The Drive for Openness in Donor Conception: Disclosure and The Trouble with Real Life' (2014) 28 International Journal of Law, Policy and The Family 321
351 Bibliography
Nordqvist, Petra and Carol Smart, Relative Strangers: Family Life, Genes and Donor Conception (Palgrave Macmillan, 2014).
Note, 'Current Topics: Blood Tests in Affiliation cases', (1935) 9 Australian Law Journal 129
Note, ‘Compensation for the Harmful Effects of Illegitimacy', (1966 ) 66 Columbia Law Review 127
Note, 'Looking for a family resemblance: the limits of a functional approach to the legal definition of family' (1991) 104 Harvard Law Review 1640
O’Flaherty, Michael and John Fisher, 'Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles' (2008) 8 Human Rights Law Review 209
Palitsky, Daniel et al, 'The Association Between Adult Attachment Style, Mental Disorders, and Suicidality: Findings From a Population‐Based Study' (2013) 201 The Journal of Nervous and Mental Disease 579
Parkinson, Patrick, 'Family law and the Indissolubility of Parenthood' (2006) 40(2) Family Law Quarterly 237
Parkinson, Patrick, Judy Cashmore and Judi Single, 'Parents' and Children's Views on Talking to Judges in Parenting Disputes in Australia' (2007) 21 International Journal of Law, Policy & Family, 84
Parkinson, Patrick, Australian Family Law in Context: Commentary and Materials (Thomson Reuters, 4th ed ed, 2009)
Parkinson, Patrick, Family Law and the Indissolubility of Parenthood (Cambridge University Press, 2011)
Payne, Jenny Gunnarsson 'Grammars of Kinship: Biological Motherhood and Assisted Reproduction in the Age of Epigenetics' (2016) 41 Signs: Journal of Women in Culture and Society 483
Piper, Christine, 'Assumptions about children’s best interests' (2000) 22 Journal of Social Welfare and Family Law 261
Pennings, Guido, 'Disclosure of donor conception, age of disclosure and the well‐being of donor offspring' (2017) 32 Human Reproduction 969
Planert, Lloyd J 'Proof of Illegitimacy in Paternity Proceedings' (1941 ) 25 Marquette Law Review 148
Pollock, Scarlett and Jo Sutton, 'Father's Rights, Women's Losses' (1985) 8(6) Women’s Studies International Journal 593
352 Bibliography
Posel, Deborah, 'What's in a Name? Racial Categorisations Under Apartheid and Their Afterlife' (2001) 47 Transformation: Critical Perspectives on Southern Africa 50
Pranzo, Diane, 'Children’s rights and children’s voices in contested custody and visitation cases in Sweden and the US' (2012) 20 Childhood 283
Price Cohen, Cynthia, 'The Role of Nongovernmental Organizations in the Drafting of the Convention on the Rights of the Child ' (1990) 12(1) Human Rights Quarterly 137
Pryor, Jan and Bryan Rodgers, Children in Changing Families: Life after parent separation (Blackwell, 2001)
Rabinow, Paul, 'Galton's Regret and DNA typing' (1993) 17 Culture, Medicine and Psychiatry 59
Ramsey, Sarah H, 'Constructing Parenthood for Stepparents: Parents by Estoppel and De Facto Parents under the American Law Institute's Principles of the Law of Family Dissolution, ' (2001) 8 Duke Journal of Gender Law & Policy 285.
Rathus, Zoe, 'Social Science or "Lego‐Science"? Presumptions, Politics, Parenting and the New Family Law' (2010) 10 Queensland University of Technology Law and Justice Journal 164
Ravelingien, An, V Provoost and Guido Pennings, 'Donor‐conceived children looking for their sperm donor: what do they want to know?' (2013) 5 Facts, Views & Vision in ObGyn 257
Ravelingien, An and Guido Pennings, 'The Right to Know Your Genetic Parents: From Open‐Identity Gamete Donation to Routine Paternity Testing' (2013) 13 The American Journal of Bioethics 33
Rhoades, Helen, 'Australia's Child Support Scheme ‐ Is It Working?' (1995) 7 Journal of Child Law 26
Rhoades, Helen, 'The Rise and Rise of Shared Parenting Laws: A Critical Reflection' (2002) 19 Canadian Journal of Family Law 75
Rhoades, Helen, 'Yearning for Law: Fathers' Groups and Family Law Reform in Australia' in Richard Collier and Sally Sheldon (eds), Fathers' Rights Activism and Law Reform in Comparative Perspective (Hart Publishing, 2006) 125‐146
Rhoades, Helen, 'Children’s needs and ‘gender wars’: The paradox of parenting law reform' (2010) 24 Australian Journal of Family Law 160
Helen Rhoades, 'Revising Australia's parenting laws: a plea for a relational approach to children's best interests' (2010) 22 Child and Family Law Quarterly 172
Ridge, Tess, 'Supporting Children? The Impact of Child Support Policies on Children's Wellbeing in the UK and Australia' (2005) 43 Journal of Social Policy 121
353 Bibliography
Rigg, Andrea and Jan Pryor, 'Children’s Perceptions of Families: What Do They Really Think?' (2007) 21 Children & Society 17
Riggs, Damien W, What About the Children! Masculinities, Sexualities and Hegemony (Cambridge Scholars Publishing, 2010)
Riley, Helen J, 'Listening to late discovery adoption and donor offspring stories : adoption, ethics and implications for contemporary donor insemination practices' in Ceridwen Spark and Denise Cuthbert (eds), Other People's Children : Adoption in Australia (Australian Scholarly Publishing, 2009) 145‐160
Robert, Hannah, 'The Cuckold's Cause: Men Claiming Damages for Deceit Against Mothers who got their Child's Paternity Wrong' in Craig Lind, Heather Keating and Jo Bridgeman (eds), Taking Responsibility, Law and the Changing Family (Ashgate, 2011) 149
Roberts, Dorothy E, 'The Genetic Tie' (1995) 62 University of Chicago Law Review 209
Roe, Amy et al, 'Young children’s representations of their families: A longitudinal follow‐up study of family drawings by children living in different family settings' (2006) 30 International Journal of Behavioral Development 529
Ross, Nicola, 'Independent Children’s Lawyers: Relational approaches to children’s representation' (2012) 26 Australian Journal of Family Law 220
Rothman, Barbara Katz 'Daddy Plants a Seed: Personhood under Patriarchy' (1996) 47 Hastings Law Journal 1241
Ruzicka, L T, 'Non‐marital pregnancies in Australia since 1947' (1975) 7 Journal of Biosocial Science 113
Saario, Vieno Voitto, Study of discrimination against persons born out of wedlock: draft report, UN Doc E 68 XIV 3 [1967] (United Nations Economic and Social Council, Sub‐ commission on Prevention of Discrimination and Protection of Minorities)
Sackville, Ronald and Annemaree Lanteri, 'The Disabilities of Illegitimate Children in Australia: A Preliminary Analysis' (1970) 44 Australian Law Journal 5
Sackville, Ronald, 'Affiliation Proceedings in Victoria' (1972) 8 Melbourne University Law Review 351
Sackville, Ronald, 'Social Welfare for Fatherless Families in Australia: Some Legal Issues' (1972 ) 46 Australian Law Journal 607
Sants, H J, 'Genealogical Bewilderment in children with substitute parents' (1964) 37 British Journal of Medical Psychology 133
Schore, Allan and Jennifer McIntosh, 'Family Law and the Neuroscience of Attachment, Part 1' (2011) 49 Family Court Review 501
354 Bibliography
Scott‐Jones, Diane, 'Paternity Testing, Family Relationships and Child Well‐Being' in Mark A Rothstein et al (eds), Genetic Ties and the Family: The Impact of Paternity Testing on Parents and Children (John Hopkins University Press, 2005) 50‐69
Scully, Jackie Leach and Rachel Woodward, 'Naming the unknown of Fromelles: DNA profiling, ethics and the identification of First World War bodies' (2012) 5 Journal of War & Culture Studies 59
Selby, D M, 'All His Faults Observ'd' (1973) 47 Australian Law Journal 421
Senate Community Affairs References Committee, Parliament of Australia, Commonwealth Contribution to Former Forced Adoption Policies and Practices (2012)
Sender, Ron, Shai Fuchs and Ron Milo, 'Revised Estimates for the Number of Human and Bacteria Cells in the Body' (2016) 14(8) PLoS Biology 1
Sevenhuijsen, Selma, 'Fatherhood and the Political Theory of Rights: Theoretical Perspectives on Feminism' (1986) International Journal of the Sociology of Law 329
Sevenhuijsen, Selma 'The Gendered Juridification of Parenthood' (1992 ) 1 Social & Legal Studies 71
Shakespeare, William, Shakespeare's Sonnets (Harper & Brothers, 1890)
Shapiro, Julie, 'A Lesbian Centered Critique of Genetic Parenthood' (2006) 9 Journal of Gender, Race and Justice 591
Sheldon, Sally 'Sperm Bandits: Birth Control Fraud and the Battle of the Sexes ' (2001) 21(3) Legal Studies 460
Sheldon, Sally, 'Unmarried Fathers and Parental Responsibility: A Case for Reform?' (2001) 9 Feminist Legal Studies 93
Sheldon, Sally, 'Unwilling Fathers and Abortion: Terminating Men's Child Support Obligations?' (2003) 66(2) Modern Law Review 175.
Sheldon, Sally, 'Case note: Gender Equality and Reproductive Decision‐Making ' (2004 ) 12 Feminist Legal Studies 303.
Sheldon, Sally, 'Fragmenting Fatherhood: the regulation of reproductive technologies.' (2005) 68 Modern Law Review 523
Sheldon, Sally, 'Reproductive Technologies and the Legal Determination of Fatherhood' (2005) 13 Feminist Legal Studies 349
Sheldon, Sally, 'No Father Required? The Welfare Assessment in the Human Fertilisation and Embryology Act (2008)' (2009) Feminist Legal Studies 373
355 Bibliography
Sheldon, Sally, 'From ‘absent objects of blame’ to ‘fathers who want to take responsibility’: reforming birth registration law' (2009 ) 31 Journal of Social Welfare and Family Law 373
Sirola, Krista, 'Are you my mother? Defending the rights of intended parents in gestational surrogacy arrangements in Pennsylvania' (2006) 14 Journal of Gender, Social Policy & the Law 131
Smart, Carol, 'The Legal and Moral Ordering of Child Custody' (1991) 18 Journal of Law & Society 485
Smart, Carol, 'Losing the Struggle for Another Voice: The Case of Family Law' (1995) 18 Dalhousie Law Journal 173.
Smart, Carol ''There is of course the distinction dictated by nature': Law and the Problem of Paternity' in Michelle Stanworth (ed), Reproductive Technologies: Gender, Motherhood and Medicine (Polity Press, 1987) 98
Smart, Carol and Bren Neale, Family Fragments? (Polity Press, 1999)
Smart, Carol, ‘Stories of Family Life: Cohabitation, Marriage and Social Change’ (2000) 17 Canadian Journal of Family Law 20
Smart, Carol, 'From children's shoes to children's voices' (2002) 40 Family Court Review 307
Carol Smart, 'Towards an understanding of family change: Gender conflict and children's citizenship' [1] (2003) 17(1) Australian Journal of Family Law 1
Smart, Carol, 'Equal shares: rights for fathers or recognition for children?' (2004) 24 Critical Social Policy 484
Smart, Carol, Personal Life: New Directions in Sociological Thinking (Polity, 2007)
Smart, Carol, 'Family Secrets: Law and Understandings of Openness in Everyday Relationships' (2009) 38 Journal of Social Policy 551
Smart, Carol, 'Making Kin: Relationality and Law' in Anne Bottomley and Simone Wong (eds), Changing Contours of Domestic Life, Family and Law (Hart, 2009) 7
Smart, Carol 'Law and the Regulation of Family Secrets' (2010) 24 International Journal of Law, Policy and the Family, 397
Smart, Carol, 'Families, Secrets and Memories' (2011) 45(4) Sociology 539
Smart, Carol, 'Law and Family Life: Insights from 25 Years of Empirical Research' (2014) 26 Child and Family Law Quarterly 14
356 Bibliography
Smedley, Audrey and Brian D Smedley, 'Race as biology is fiction, racism as a social problem is real: Anthropological and historical perspectives on the social construction of race' (2005 ) 60 American Psychologist 16
Smith, Alex, 'The History of the Rule in Russell v. Russell' (1940‐1942) 4 Alberta Law Quarterly 167
Solinger, Rickie, Pregnancy and Power ‐ A Short History of Reproductive Politics in America (New York University Press, 2005)
Song, Se Jin et al, 'Cohabiting family members share microbiota with one another and with their dogs' (2013) eLife e00458
Spivak, Gayatri Chakravorty, 'Can the Subaltern Speak? (Revised edition)' in Rosalind C Morris (ed), Can the Subaltern Speak: Reflections on the History of an Idea. (Columbia UP, 2010) 21‐78
Stevenson, Angus, Oxford Dictionary of English (Oxford University Press, 3rd ed, 2010)
Stone, O M, 'Report of the Committee on the Law of Succession in Relation to Illegitimate Persons' (1967) 30 Modern Law Review 552
Strathern, Marilyn, Kinship, Law and the Unexpected: Relatives are Always a Surprise (Cambridge University Press, 2005).
Stubbs, Daniel, Director, Inner City Legal Centre. Submission No 25 to NSW Legislative Assembly Law and Safety Committee, Inquiry into Inclusion of donor details on the register of births, 15 December 2011
Sturgess, Wendy, Judy Dunn and Lisa Davies, 'Young children’s perceptions of their relationships with family members: Links with family setting, friendships, and adjustment' (2001) 25 International Journal of Behavioral Development 521
Sutherland, Elaine, 'Listening to the child's voice in the family setting: From aspiration to reality' (2014) 26 Child and Family Law Quarterly 152
Swain, Shurlee and Renate Howe, Single Mothers and their Children: Disposal, Punishment and Survival in Australia (Cambridge University Press, 1995)
Taylor‐Sands, Michelle, 'Removing donor anonymity: What does it achieve?: Revisiting the welfare of donor‐conceived individuals ' (2018) 41 University of New South Wales Law Journal 555
Taylor, Nicola, Pauline Tapp and Mark Henaghan, 'Respecting Children’s Participation in Family Law Proceedings' (2007) 15 International Journal of Children’s Rights 61
Tisdall, E Kay M, 'Children’s Rights and Children’s Wellbeing: Equivalent Policy Concepts?' (2015) 44 Journal of Social Policy 807
357 Bibliography
Tisdall, E Kay M, 'Subjects with agency? Children’s participation in family law proceedings' (2016) 38 Journal of Social Welfare and Family Law 362
Tisdall, E Kay M, 'Challenging Competency and Capacity? Due Weight to Children’s Views in Family Law Proceedings' (2018) 26 International Journal of Children’s Rights 159
Tobin, John, The Convention on the Rights of the Child: The Rights and Best Interests of Children Conceived Through Assisted Reproduction, Occasional Paper (Victorian Law Reform Commission, 2004)
Tobin, John, 'Taking Children’s Rights Seriously: The Need for a Multilingual Approach' in Alison Diduck, Noam Peleg and Helen Reece (eds), Law in Society: Reflections on Children, Family, Culture and Philosophy, Essays in Honour of Michael Freeman (Brill, 2015) 127
Toom, Victor 'Bodies of Science and Law: Forensic DNA Profiling, Biological Bodies, and Biopower' (2012) 39 Journal of Law and Society 150
Trinder, Liz, 'What might children mean by a 'meaningful relationship'?' (2009) 15 Journal of Family Studies 20
Turney, Lyn, 'Paternity Secrets: Why women don't tell' [227] (2005) 11(2) Journal of Family Studies 227
Turney, Lyn and Paula Wood, ''Paternity Fraud' and the Invisible Child' [119] (2007) 5(2) Australian Journal of Emerging Technologies and Society 119
Unicef, 25 Years of the Convention on the Rights of the Child: Is the world a better place for children? (United Nations Children's Fund, 2014). van Krieken, Robert, 'Law's Autonomy in Action: Anthropology and History in Court' (2006) 15 Social & Legal Studies 574 van Rosmalen, Lenny , Marinus van IJzendoorn and Marian Bakermans‐Kranenburg, 'ABC + D of attachment theory: The Strange Situation Procedure as the gold standard of attachment assessment' in Paul Holmes and Steve Farnfield (eds), (Routledge, ) ' in Paul Holmes and Steve Farnfield (eds), The Routledge Handbook of Attachment: Theory (2014) 11‐30
Victorian Law Reform Commission, Report No 10, Assisted Reproductive Technology & Adoption (2007)
Victorian Law Reform Commission, Birth Registration and Birth Certificates: A Community Law Reform Project (August 2013)
Victorian Law Reform Commission, Review of the Adoption Act 1984 (2017)
358 Bibliography
Wald, Deborah H, 'The Parentage Puzzle: The Interplay Between Genetics, Procreative Intent and Parental Conduct in Determining Legal Parentage' (2007) 15 Journal of Gender, Social Policy & the Law 379
Warshak, Richard A, 'Payoffs and Pitfalls of Listening to Children' (2003) 52 Family Relations 373
Webster, Andrew, 'Innovative genetic technologies, governance and social accountability' in Paul Atkinson, Peter Glasner and Margaret Lock (eds), Handbook of genetics and society: Mapping the Genomic Era (Routledge, 2009) 486
Weir, Kirk, 'High‐conflict contact disputes : the Evidence of extreme unreliability of some children's ascertainable wishes and feelings ' (2011) 49 Family Court Review 788
Welfare, Australian Institute of Health and, Adoptions Australia 2012‐13 (Australian Institute of Health and Welfare, 2013)
Wiegers, Wanda, 'Fatherhood and Misattributed Genetic Paternity in Family Law' (2011) 36 Queen's Law Journal 623
Wilson, Evelyn L, 'Caught in a Trap‐Paternity Presumptions in Louisiana' (2013) 9 The Modern American 36
Woodhouse, Barbara Bennett 'Hatching the Egg: A Child‐centred Perspective on Parents' Rights ' (1993) Cardozo Law Review 1747
Yalden, B Joan and Brendan McCormack, 'Constructions of dignity: a pre‐requisite for flourishing in theworkplace?' (2010) 5 International Journal of Older People Nursing 137
Yasenik, Lorri A and Jon M Graham, 'The Continuum of Including Children in ADR Processes: A Child‐Centered Continuum Model' (2016) 54(2) Family Court Review 186
Young, Lisa, 'Sex, lies and money: The High Court considers deceit and paternity fraud in Magill v Magill' (2007) 15 Torts Law Journal 1
Young, Lisa and Stephen Shaw, 'Magill v Magill: Families and deceit' (2005) 19 Australian Journal of Family Law 44
Young, Lisa et al, Family Law in Australia (Lexis Nexis Butterworths, 8th ed, 2013)
Zadeh, Sophie et al, 'The perspectives of adolescents conceived using surrogacy, egg or sperm donation ' (2018) Human Reproduction 1
Zanghellini, Alleardo, 'Who is entitled to Parental Responsibility? Biology, Caregiving, Intention and the Family Law Act 1975 (Cth): A Jurisprudential Feminist Analysis' (2009) 35 Monash University Law Review 147
B. Cases
359 Bibliography
Ah Chuck v Needham (1931) 559 NZLR 277
Albert & Edell [2010] FMCAfam 1487
Aldridge & Keaton [2009] FamCAFC 229 (22 December 2009)
Ames & Ames [2009] FamCA 825 (4 September 2009)
AW v CW [2002] NSWSC 301 (17 April 2002)
B & B & DCSR [2001] FamCA 1371 (Dawe J, 6 December 2001)
B & M [2003] FMCAfam 113 (8 May 2003)
B v J (1996) FLC 92‐716
Baker & Landon [2010] FMCAfam 280 (Reithmuller FM, 25 March 2010)
Ballmick v Ballmick [2005] ONCJ 101 (11 March 2005)
Bateman & Kavan [2014] FCCA 2521 (Harman J, 1 October 2014)
Bernieres & Dhopal [2015] FamCA 736 (9 September 2015)
BM & DA [2007] FMCAfam 770 (Henderson FM, 28 September 2007)
Boehm v Baker and Deputy Child Support Registrar [2001] FamCA 1371 (6 Dec 2001)
Boivin v Smith (2013) ONCJ 426
Brianna v Brianna [2010] FamCAFC 97 (Bryant CJ, Finn and Thackray JJ, 28 May 2010)
Bryan & Wardell [2008] FamCA 598 (1 August 2008)
Burton & Churchin and Anor [2013] FamCA 597 (16 August 2013)
Burton & Churchin and Anor [2013] FamCAFC 180 (15 November 2013)
C & G & M [2001] FMCAfam 83 (Ryan FM, 25 July 2001)
Carlton & Bissett and Another (2013) 143 FamCA (19 February 2013)
Chartier v Chartier [1999] 1 SCR 242 (Supreme Court of Canada: L’Heureux‐Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ)
Child Support Registrar & Z & T [2002] FamCA 182 (Lindenmayer, Finn & Coleman JJ, 21 March 2002)
Clarkson & Zammit [2014] FCCA 1099 (Phipps J, 30 May 2014)
Clutterbuck & Tryon & Anor [2008] FMCAfam 784 (30 July 2008)
360 Bibliography
Collins & Tangtoi [2010] FamCA 878 (9 August 2010)
Colvan & Colvan [2015] FCCA 99 (13 January 2015)
Connors & Taylor [2012] FamCA 207 (5 April 2012)
Cornelio v Cornelio (2008) 94 OR (3d) 213
Cross & Hagan [2016] FCCA 136 (9 February 2016)
Day v Weir (2014) ONSC 5975
Dennis & Pradchaphet [2011] FamCA 123 (22 February 2011)
DOCS v A [2000] NSWSC 1179 (13 December 2000)
Donnell & Dovey [2009] FMCAfam 515 (3 March 2009)
Donnell & Dovey [2010] FamCAFC 15 (Warnick, Thackray & O'Ryan JJ, 10 February 2010)
DRP v AJL [2004] FMCAfam 440 (Riethmuller FM, 20 September 2004)
Duroux & Martin [1993] FamCA 125 (29 November 1993)
Ellison & Karnchanit [2012] FamCA 602 (1 August 2012)
Ex parte Ridley; Re Totterdell and anor (1946) 47 SR (NSW) 173
EZ v PZ [2017] BCSC 375
F & R (1992) FLC 92‐300 (Butler J, Family Court of Australia)
F & R [No. 2] (1992) 15 Fam LR 662
Farnell v Penhalluriack (No 2) [2008] VSC 214 (24 June 2008)
Fello & Sternfeldt [2014] FamCA 312 (15 May 2014)
Findlay and Anor & Punyawong [2011] FamCA 503 (30 June 2011)
Forsythe & Latimer & Anor [2010] FMCAfam 478 (12 March 2010 )
G & H [1992] FamCA 51 (Lindenmayer J, 18 August 1992)
G & H [1993] FamCA 39 (Fogarty, Straus and Wilczek JJ, 23 April 1993)
G & H (1994) 181 CLR 387
G & N [2002] FMCAfam 281 (Bryant CRM, 22 August 2002)
G & T [2002] FamCA 1517 (18 October 2002)
361 Bibliography
G (TD) v G (LM) [2009] NBQB 207 (Unreported, New Brunswick Court of Queen's Bench, Terrence & Morrison JJ, 30 July 2009)
Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112 (UK House of Lords)
Gottspiel & Rufus [2009] FamCA 512 (18 June 2009)
Gough and Anor & Kaur [2012] FamCA 79 (MacMillan J, 1 March 2012)
Groth & Banks [2013] FamCA 430 (Cronin J, 11 June 2013)
Hadley & Pock [2011] FMCAfam 117 (Roberts FM, 17 February 2011)
Helebrant v Perdic [2010] VSC 580 (14 December 2010)
Henning & Henning [2012] FMCAfam 119 (18 October 2012)
Henry & Washburn [2010] FMCAfam 165 (3 March 2010)
Holmes v Holmes [1966] 1 WLR 187
Hood & Cormack [2008] FamCA 774 (12 September 2008)
H v Minister for Immigration & Citizenship (‘Hudson’) [2010] FCAFC 119 (15 September 2010)
Hubert & Juntasa [2011] FamCA 504 (30 June 2011)
Hudson v Minister for Immigration & Citizenship [2011] FCA 1134 (7 October 2011)
Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23 (13 March 2013)
Hunt v Minister for Immigration and Ethnic Affairs [1993] FCA (25 March 1993)
Hurst & Gersten [2014] FamCA 117 (5 March 2014)
In the Marriage of Braithwaite (Unreported, Family Court of Australia, Kay J, 19 December 1991)
In the Marriage of Drew (1993) 16 Fam LR 536
Johnson & Chompunut [2011] FamCA 505 (30 June 2011)
Jones & Azarac [2012] FAMCA 872 (18 October 2012)
Jones v Darragh; Department of Community Services et al (Interveners) (1992) 15 Fam LR 757
K‐A & K‐P [2005] FMCAfam 62 (7 March 2005)
362 Bibliography
Knightley & Brandon [2013] FMCAfam 148 (1 February 2013)
Kohari v NSW Trustee & Guardian [2016] NSWSC 1372 (30 September)
Lamb (No 1) (1977) FLC 90‐225 (Asche SJ)
Lara & Marley [2003] FamCA 1393 (19 December 2003)
Letsos & Vakros [2009] FMCAfam 897 (26 August 2009)
Levine & Levine [2011] FMCAfam 821 (22 August 2011)
Lilley & Logan [2009] FMCAfam 868
McK & K & O [2001] FamCA 990 (11 July 2001)
Magill v Magill [2005] VSCA 51 (17 March 2005)
Magill v Magill [2006] 226 CLR 551
Magill v Magill [2006] HCATrans 163 (7 April 2006)
Madsen & Kaplan [2012] FMCAfam 251 (Brewster FM, 22 March 2012)
Mandet v France [2016] Eur Court HR 82
Mason & Mason [2013] FamCA 424 (7 June 2013)
Masson & Parsons [2017] FamCA 789 (3 October 2017)
Meilnik & Jenk [2014] FamCA 18 (14 January 2014)
Morgan & Carter [2016] FCCA 289 (26 February 2016)
Mulvany & Lane [2008] FMCAfam 473 (22 May 2008)
Mulvany & Lane [2009] FamCAFC 76 (Finn, May and Thackray JJ, 12 May 2009)
Nobels v Anderson [1972] VR 821
O & M [2006] FMCAfam 11 (18 January 2006)
O’Connor & Kasemsarn [2010] FamCA 987 (29 October 2010)
Parker v Parker 950 So 2d 388 (Fla 2007) 394
Parsons and Anor & Masson [2018] FamCAFC 115 (28 June 2018)
Piggott & Anor v Harrex & Anor [2000] TASSC 72 (21 June 2000)
R Jenkins; Ex parte Morrison [1949] VLR 277
363 Bibliography
Radcliffe & Sayer [2012] FMCAfam 342 (17 April 2012)
Re An Application under the Status of Children Act [2002] NTCA 3 (20 May 2002)
Re C (No 2) (1992) 15 Fam LR 355
Re C & D [1998] FamCA 98 (1 July 1998)
Re CN and MG (infants) (1976) 9 ALR 666 (Muirhead J, Supreme Court of the Northern Territory)
Re D (Paternity) [2006] EWHC (Fam) 3545 (Hedley J)
Re F, ex parte F (1986) 161 CLR 376
Re H & A (Children) [2002] EWCA Civ 383
Re H (Paternity – Blood tests) [1996] 4 All ER 28
Re L [1968] 1 All ER 20 [1968])
Re Michael: Surrogacy Arrangements [2009] FamCA 691 (3 August 2009)
Re Mark: An application relating to parental responsibility (2003) 179 FLR 248 (Brown J)
Re T (Paternity: Ordering Blood Tests) (2001) 2 FLR 1190
Re XY; ex parte State Trustees Ltd [2001] VSC 89 (1 May 2001)
Rejfek v McElroy (1965) 112 CLR 517
Rice & Miller (1993) 16 FamLR 970
RNH v GC‐B [2004] SKQB 515
Roberts v Roberts ( ) [1971] 160 VR (Full Court, Victorian Supreme Court, Winneke CJ, Gillard & Barber JJ)
Russell v Russell [1924] AC 687
Russell v Russell (1976) 134 CLR 495 (Barwick CJ, Gibbs, Stephen, Mason and Jacobs JJ)
S v McC (formerly S) and M (S intervening) [1970] 1 All ER 1162
S v McC and M [1970] 3 AC 107 (House of Lords)
S v S [1970] 1 All ER 1162 (Denning MR, Sachs and Karminski LJJ)
364 Bibliography
S v S, W v Official Solicitor [1970] 3 All ER 107 (Lord Reid, Lord MaDermott, Lord Morris of Borth‐y‐Gest, Lord Hodson and Lord Guest, House of Lords)
Sayer & Radcliffe [2012] FamCAFC 209
Scotland & King [2012] FMCAfam 690 (10 July 2012)
Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15
Simpson & Brockman [2009] Fam CAFC 73
Styles & Palmer [2014] FamCA 383 (11 June 2014)
Taylor v McQuillan [1990] (Unreported, Family Court of Australia (Dandenong), Kay J, 7 May 1990)
TDG v LMG (2009) NBBR 207 (30 July 2009)
Tobin v Tobin [1999] FamCA 446 (Finn, Kay and Chisholm JJ, 13 May 1999)
TNL & CYT [2005] FamCA 77 (23 February 2005)
Tryon & Clutterbuck (No 2) [2009] FamCAFC 176 (15 September 2009)
TW v SL [2017] SKQB 45
V & V [2002] FMCAfam 408 (Bryant CFM, 19 November 2002)
Vargas and Anor and Mann and Anor [2010] FMCAfam 20 (29 January 2010)
Vargas and Anor v Mann and Anor [2009] FMCAfam 1383 (6 November 2009)
Vaughan & Vaughan & Scott [2010] FMCAfam 863 (Lapthorn FM, 23 August 2010)
Verner & Vine [2005] FamCA 763 (15 August 2005)
VR & RR [2002] FamCA 320 (15 May 2002)
W & G (1996) 20 Fam LR 49
W & H [2004] FMCAfam 28 (Scarlett FM, 20 January 2004)
W v W [1970] 1 All ER 1157 (Denning MR, Winn and Cross LJ,UK Court of Appeal, Civil Division)
Wang & Lo [2014] FCCA 1624 (3 March 2014)
Watson v Watson [1954] P 48 (Barnard J)
Whitley & Ingham [2013] FCCA 869 (22 July 2013)
365 Bibliography
Williams v Smith [2006] ACTSC 65 (28 June 2006)
Withers & Bates & Anor [2011] FMCAfam 730 (21 July 2011)
Yamada & Cain [2013] FamCAFC 64 (Thackray, Murphy & Macmillan JJ, 26 April 2013)
W v W, 728 A 2d 1076 (Conn, 1999)
W v W (No 4) (1963) 2 All ER 841.
Watts v Watts [1953] HCA 18 (27 April 1953)
Z & T & Child Support Registrar [2001] FamCA 1481 (Kay J, 9 April 2001)
C. Legislation
Adoption Act 1984 (Vic)
Assisted Reproductive Treatment Act 2008 (Vic)
Births, Deaths and Marriages Registration Act 1995 (NSW)
Births, Deaths and Marriages Registration Act 1996 (Vic)
Births, Deaths and Marriages Registration Act 1996 (SA)
Births, Deaths and Marriages Registration Act 1997 (ACT)
Births, Deaths and Marriages Registration Act 1998 (WA)
Births, Deaths and Marriages Registration Act 1999 (Tas)
Births, Deaths and Marriages Registration Act 2003 (Qld)
Births, Deaths and Marriages Registration Act (NT)
Child Support (Assessment) Act 1989 (Cth)
Children Youth and Families Act 2005 (Vic)
Commonwealth Powers (Family Law –Children) Act 1986(Vic)
Criminal Law Consolidation Act 1935 (SA)
Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)
Family Law Amendment Act 2000 (Cth) amending Family Law Act 1975 (Cth)
366 Bibliography
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) amending Family Law Act 1975 (Cth)
Family Relationships Act 1975 (SA)
Evidence Act 1995 (Cth)
Maintenance Act 1965 (Vic)
Matrimonial Causes Act 1926‐36 (SA)
Matrimonial Causes Act 1959 (Cth)
Matrimonial Causes and Personal Status Code 1948 (WA)
Parentage Act 2004 (ACT)
Status of Children Act 1974 (Tas)
Status of Children Act 1974 (Vic)
Status of Children Act 1978 (NT)
Status of Children Act 1978 (Qld)
Status of Children Act 1996 (NSW)
Uniform Parentage Act 15 USC § 204(5) (2002)
D. Treaties
Convention on Human Rights and Biomedicine, opened for signature 4 April 1997, CETS 164 (entered into force 1 December 1999)
Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008)
Convention on the Rights of the Child opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
United Nations Convention on the Rights of the Child, Arts 7‐8, 20 November 1989, 1577 UNTS 3 (ratified by Australia 17 December 1990)
United Nations Educational, Scientific and Cultural Organization (UNESCO) International Declaration on Human Genetic Data, 32 C/Res 22 (2003) 39
E. Other
367 Bibliography
Assisted Reproductive Technology and Adoption: Submissions Snapshot, (4 April 2017) Victorian Law Reform Commission
Australian Bureau of Statistics, Births, Australia, 2011, 3301.0 (25 October 2011) ABS
Australian Bureau of Statistics, Family Characteristics and Transitions, Australia, 2012‐ 13, 4442.0 (26 February 2015) ABS
Australian Bureau of Statistics, Births, Australia, 2016, 3301.0 (12 December 2017) ABS
Births Deaths and Marriages Victoria, Add or remove a parent on a birth certificate (5 March 2018) State of Victoria, Australia
Bissett, Kelvin, 'I paid $71,000 for a Fake Son (I'm not this kid's dad, so where's my money)', Daily Telegraph (Sydney), 11 November 2008, 1
Bremner, Philip, Collaborative Co‐Parenting: A Comparative Study of the Legal Response to Polyparenting in Canada and the UK, (PhD Thesis, University of Exeter, 2015)
Child Rights International Network, Mandet v France (Summary) (2018)
Commission on Human Rights ‐ Report of the Fifteenth Session, UN ESCOR, 28th sess, Supp No 8, UN Doc E/CN.4/789 (4 May 1959), 18. [1959])
Commonwealth, Parliamentary Debates, House of Representatives, 16 August 1989, 167 (Mr Johns, ALP)
Commonwealth, Parliamentary Debates, Senate, 22 June 2005, 125 (Phillip Ruddock, Attorney‐General)
Davies, Julie‐Anne 'Sex, Lies & DNA', The Bulletin, 20 March, 18‐24
Department of Families, Housing, Community Services and Indigenous Affairs, Family Assistance Guide, Version 1.133, 6 September 2010, 3.1.5.70 [2010])
Family Court of Australia, Family Court of Western Australia and the Federal Circuit Court, Guidelines for Independent Children's Lawyer (29 May 2013)
Great Britain, Parliamentary Debates, House of Lords, 22 February 1967, vol 280 cc707‐ 21 (Dr Edith Summerskill) [1967])
368 Bibliography
Harding, Ann et al, 'Social Policy Matters: The Changing Face of Child Poverty in Australia 1982 to 1997‐98' (Paper presented at the 7th Australian Institute of Family Studies Conference, Sydney, 26 July 2000)
Kwok, Emily, Resolving misattributed paternity disputes in the context of family law and the child's best interest University of Sydney, 2012)
Letter from Professor Susan Golombok to Clerk Ms Hessing‐Puts, Standing Committee on Security and Justice, House of Representatives of the States General, The Netherlands, 16 January 2017 <
Martone, Robert, Scientists Discover Children's Cells Living in Mothers' Brains (4 December 2012) Scientific American
Masanauskas, John and Martin Philip, 'Bob Hawke's biggest regret', Herald Sun (Melbourne) 16 June 2007
Millbank, Jenni, Submission No 17 to NSW Legislative Assembly Law and Safety Committee, Inquiry into Inclusion of donor details on the register of births, 20 December 2011
O'Shea, Kelly, 'Medical mystery: Woman gives birth to children, discovers her twin is actually the biological mother', The Inquirer (Philadelphia), 4 September 2014
Overington, Caroline, 'Mother jailed for denying access to boy's dad', The Australian, 5 May
Parliament, Commonwealth, Parliamentary Debates, Senate, 6 September 1989 (Bronwyn Bishop)
Pascoe, Chief Justice John, 'Louis Waller Lecture' (Speech delivered at the Victorian Assisted Reproductive Treatment Authority, Melbourne, 9 November 2016)
Passports Office, Passports explained > How to apply > Eligibility: citizenship and identity > Birth Certificates Australian Government, Department of Foreign Affairs and Trade
Riley, Helen, Identity and Genetic Origins: An Ethical Exploration of the Late Discovery of Adoptive and Donor ‐ insemination Offspring Status (PhD Thesis, Queensland University of Technology, 2012)
The Daughter (Directed by Simon Stone, Screen NSW and Wildflower Films, 2015)
Victoria, Parliamentary Debates, Legislative Assembly, 23 March 1965, 2747 (Mr Rylah). [1965])
369 Bibliography
Victorian Assisted Reproductive Treatment Authority, Access to information about the donor
Victorian Assisted Reproductive Treatment Authority, How I found and lost my donor https://www.varta.org.au/resources/how‐i‐found‐and‐lost‐my‐donor
World Health Organization, Guidelines on Ethical Issues in Medical Genetics and the Provision of Genetic Services (World Health Organization, 1997)
370
Minerva Access is the Institutional Repository of The University of Melbourne
Author/s: Robert, Hannah
Title: Truth or ‘collateral damage’? Legal parentage, bio-genetic parentage and children’s perspectives
Date: 2018
Persistent Link: http://hdl.handle.net/11343/219276
File Description: Complete thesis
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