A new parenthood paradigm for twenty-first century family law in England and Wales?

There are few other areas in family law where incongruence between the legal and social positions is as evident as that concerning parenthood. Recent cases involving lesbian couples and known sperm donors serve to highlight the increasing tension between the respective roles of biology, intention and functional parenting in the attribution of legal parental status. As both legislative and case-law developments have shown, intention is central in some circumstances, but not in others. The main claim of this paper is that this ad hoc approach leads to incoherent and unsatisfactory law: instead of striving to identify a status, what we are really looking to do is to identify the people who assume responsibility for a child. Drawing upon recent case-law, this paper explores how a conceptual reform of the law could result in a principled framework which would place formally recognised intention at the heart of parental status in order to reconnect legal duty with social reality for as many children and parents as possible. Moreover, it would ensure that parental status would not be dictated by the mode of conception of the child (natural or assisted). The analysis identifies the objectives of reform before proposing a new model which, while recognising the social importance of the biological parentage link, would reserve legal status for functional parenthood.

RE Patrick & the rights and responsibilities of sperm donor fathers in Australian family law

In the matter of Re Patrick, Guest J of the Family Court of Australia held that a sperm donor, known to the lesbian mother of the child, had a right under Australian law to regular contact with the child to the extent that this was in the child's best interests. However, his Honour also held that due to the way in which particular provisions of the Family Law Act 1975 (Cth) are drafted, a sperm donor cannot be regarded as the "parent" of the child, and accordingly called for legislative reform to recognise the rights of known sperm donors wanting involvement with the child. In this article, the authors will first explore the facts and decision in Re Patrick, and then outline a proposal to amend the Family Law Act 1975 so that sperm donors can apply for an order to be a 'parent' under the Act.

Family law in Australia: re Patrick and the matter of Child A

In Re Patrick, Guest J of the Family Court of Australia dealt with the issue of whether a gay sperm donor, known to the lesbian mother of the child, had a right under Australian law to regular contact with the child. Justice Guest held that the sperm donor was allowed contact with the child to the extent that this was in the child's best interests. His Honour did, however, find that due to the way in which particular provisions of Australia's Family Law Act 1975 (Cth) are drafted, a sperm donor cannot be regarded as the 'parent' of the child, and accordingly called for legislative reform to recognise the rights of known sperm donors wanting involvement with the child. In this article, we discuss the matter of Re Patrick, comparing it with the strikingly similar matter of Pursuer Against Defender in the Case of Child A, decided recently by Sheriff Laura Duncan in the Glasgow Sheriff Court. We will then outline a proposal to amend the Family Law Act 1975 so that sperm donors can apply for an order to be a 'parent' for the purposes of the law, and therefore have the same rights and responsibilities as any other parent. In response to the tragic ending to the matter of Re Patrick, we conclude by stressing the need for an educational programme to be established, so that lesbian women who are considering parenthood may do so in the knowledge that the sperm donor does have the status of 'father', and in some jurisdictions 'parent', rather than merely being a 'donor'.

Family law

This series comprises a range of student texts, each adopting a problem-solving approach within a discrete area of the law. This text is designed as an easily accessible account of the legislative and judicial principles contained in Australian family law.

Child focused and child inclusive family law dispute resolution : one year findings from a prospective study of outcomes

This prospective study compared outcomes over 1 year for two groups of separated parents, who attended mediation about their entrenched parenting disputes. The two treatments studied both aimed to improve the psychological resolution of parental conflict with associated reduction of distress for their children. The Child Focused intervention prioritised thought about the needs of children in high conflict divorce, but without any direct involvement of the children, while the Child Inclusive intervention incorporated separate consultation by a specialist with the children in each family, and consideration of their concerns with parents in the mediation forum. Measures were collected from parents and children prior to mediation commencing, and again three and twelve months after the conclusion of mediation. Significant and enduring reduction in levels of conflict and improved management of disputes occurred for both treatment groups in the year after mediation. Across all ages, children in both interventions perceived less frequent and intense conflict between their parents and better resolution of it, with a significant lowering of their related distress. The Child Inclusive intervention showed a number of independent effects not evident in the other treatment group, related to relationship improvements and psychological wellbeing. These effects were strongest for fathers and children. Agreements reached by the Child Inclusive group were significantly more durable and workable over the year, and these parents were half as likely to instigate new litigation over parenting matters in the year after mediation than were the Child Focused parents. The article considers possible mechanisms of change underpinning these outcomes.

Family violence : key findings from the evaluation of the 2006 family law reforms

The different types, prevalence and consequences of family violence, as demonstrated by the Australian Institute of Family Studies' Evaluation of the 2006 Family Law Reforms, are discussed. Family violence is shown to be an extremely complex phenomenon, which affects the mental and social well-being of the children. Hence, different measures that can be adopted to deal with pre- and post-separation periods and child care problems are also analyzed.

How information technology can support family law and mediation

In Australia, before a divorcing couple can have their case heard by the Family Court, they must undertake mediation. Thus it is useful to develop information technology tools to support negotiation and mediation in family law. Most negotiation support systems focus upon integrative bargaining. In doing so, they tend to ignore issues of fairness. In Australian Family Law, the interests of the children, as opposed to those of their parents/guardians, are paramount. We investigate the use of providing BATNAs and integrative bargaining in providing family mediation decision support. The discussion is highlighted with examples taken from the domain of Australian Family Law

AssetDivider : a new mediation tool in Australian family law

This article describes research in a new theory of decision support in negotiation in family law mediation. AssetDivider was based on the principles of Family_Winner. As a Negotiation Decision Support System Family_Winner takes ratings assigned to items by the parties involved and develops a list of allocations to each party; based on trade-offs inherently present in the dispute. Given advice provided from our industry partners Relationships Australia (Queensland) - RAQ, AssetDivider uses an ideal “percentage split” to guide the development of an allocation list for parties. The system has been tested informally by our contacts at RAQ, and we now look forward to extensive testing and evaluation by mediators at RAQ in the near future. We hope to report on a comprehensive evaluation which will report on the effectiveness of this program in practice.