Despite many misconceptions as to parental rights in family law matters, the reality is that it is children who have rights under the Family Law Act 1975 (Cth) (the Act). Children have the right to know and be cared for both their parents and have the right to spend time and communicate with other people significant to their care, welfare and development.
Parents have duties and obligations towards their children. Parents have the right to ask the Federal Circuit and Family Court of Australia (the Court) to decide the parenting arrangements if they cannot reach agreement between themselves.
The paramount consideration in all parenting matters is what is in the best interests of the child. Primarily, this is having a meaningful relationship with both parents and the need to protect the child from harm (with greater weight being given to protection from harm).
More information about the best interests of a child and how parenting negotiations can start can be found here.
The Act recognises that children are raised in a variety of different ways outside of what is considered traditional family structures. Transgender parents have no different rights or responsibilities towards their children, who are subject to the same best interest factors. The relationship between the parent and the child can go through a new journey where one parent is in the process of transitioning. Background information about transgenderism can be found here.
In Victoria, parties listed as parents on a child’s birth certificate are presumed to be legal parents of the child. Victorian law also makes statutory presumptions as to who is a parent of a child conceived by fertilisation procedures (the woman who gives birth to the child shall be presumed, for all purposes, to be the mother of any child born as a result of the pregnancy). In respect to paternity (who is the father), Victorian law presumes:
In respect of parentage (who is a parent), where a woman, married to another woman or lives with another woman on a genuine domestic basis (the female partner), has undergone a procedure as a result of which she has become pregnant, the female partner is presumed to be the legal parent of any child born as a result of the pregnancy if she consented to the procedure.
For family law parenting purposes, the Act reinforces the Victorian position in that where a child is born to a woman as a result of the carrying out of an artificial conception procedure, and given the relevant State or Territory law that deems the child is a child of a man, then, whether or not the child is actually biologically a child of the man, the child is his child for the purposes of the Act.
Usually, a sperm or egg donor are not considered the legal parents of any child born of an artificial insemination procedure.
However, in the 2019 case of Masson v Parsons, the High Court of Australia held that a sperm donor was the parent of the child for the purposes of the Act because the donor had been involved in the child’s life, provided financial support for the child and had input into the child’s education, welfare and health. The High Court held that the man was not merely a sperm donor in the circumstances of this particular case.
What this case means is that regardless of the gender of a party, what constitutes a parent will be established by either the birth certificate, statutory presumptions or by the facts of the case. Specialist family law advice is therefore vital.
If for whatever reason, a person does not meet the definition of a parent above, under section 65C of the Act a parent, child, grandparent or person concerned with the care, welfare and development of a child can apply to the Court for a parenting order. This last category requires the Court to determine that the person meets that threshold first.
People who are not biologically related to a child may have the right to ask the Court for parenting orders. This is called having standing to apply to the Court.
There is no set rule or law on how the Court decides whether a person is a person concerned with the care, welfare and development of a child as it depends on the facts of the case and that particular child. A person who has been caring for the child long term or with whom the child has been significant time and has a strong relationship may be considered a person concerned with the care, welfare and development of a child – it all turns on the facts and what is in the child’s best interests.
There has been only one recent unreported (publicly available) case involving a transgender parent. The facts of this case were very specific and should not be taken as a rule or guide of what may apply in another case – specific family law advice is necessary.
In the case of Vitalis & Kazan  FedCFamC1F 559 (5 August 2022), the Court, in making a decision on the interim care (short term) arrangements for an 8 and 4 year old, had to consider the impact of the parent transitioning and the parties’ separation on the children.
The facts are:
In short, the Court was asked to decide if the behaviour and experiences of the children were attributable to Ms Vitalis’ transition, the separation, the poor communication between the parents, developmental issues, the alleged family violence and sexual abuse, the children experiencing bullying, discrimination or isolation – or something else – or a combination of these factors. What the short term parenting arrangement should be in light of this?
The Court held:
Cases such as this show the complexity and the sensitive nature of the family dynamics and that appropriate expert evidence is vital to assist the Court in determining what is the children’s best interests.
Our Family & Relationship Law Team at Coulter Legal are experienced in providing sensitive and robust advice with respect to parenting matters, particularly around complex issues, such as a parent transitioning, or gender dysphoria in children and LGBTQIA+ families.
Please do not hesitate to contact our office on 03 5273 5273 to arrange an initial consultation, free of charge, to discuss your personal circumstances and how we may assist you.
Information about the Court process and development of the case in law regarding gender dysphoria can be found here.
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