AUSTRALIA Law and Practice Contributed by: Eleanor Lau, Skye Owen and Monica Bayas Inglis, Lander & Rogers
of the other. If one parent is conferred with sole deci - sion-making, they are permitted to make all the major long-term decisions for the child without consulting the other parent. The Court can also order that one parent has sole decision-making in relation to specified issues but confer joint decision‑making in relation to all other major long‑term issues. The purpose of the legislation is to allocate any responsibility for major long-term issues based on what is in the child’s best interests and when deter - mining the best interests of the child, the Court will consider the following six factors of equal weighting: • what arrangements would promote the safety of the child (including safety from family violence, abuse, neglect or other harm) and of each person who has care of the child (whether or not a person has parental responsibility for the child); • any views expressed by the child; • the developmental, psychological, emotional and cultural needs of the child; • the capacity of each person who has or is pro - posed to have parental responsibility for the child to provide for the child’s developmental, psycho - logical, emotional and cultural needs; • the benefit to the child of being able to have a rela - tionship with the child’s parents and other people who are significant to the child, where it is safe to do so; and • anything else that is relevant to the particular cir - cumstances of the child. In the absence of court orders, parents automatically have parental responsibility for a child and are encour - aged to consult with each other about major long-term issues if it is safe to do so. This is not enforceable, but merely acts as a guide to litigants in the absence of court orders. 1.2 Requirements for Birth Mothers A birth mother inherently retains parental responsibility for a child when the child is born. The only excep - tion would occur in circumstances where the Court allocates sole decision-making to another person. The Family Law Act does not automatically recognise
intended parents in surrogacy arrangements as legal parents, and surrogacy laws are not uniform across Australia. However, the Australian Law Reform Com - mission is conducting a review of surrogacy laws, aim - ing to propose uniform national standards by 29 July 2026. Such reforms may see a change to how parental responsibility is allocated in these cases. 1.3 Requirements for Fathers A birth father inherently retains parental responsibility for a child when the child is born, except in the follow - ing circumstances: • the Court allocates sole decision-making to another person; or • the birth father has donated sperm for the child’s conception through an artificial conception proce - dure and is not married to or in a de facto relation - ship with the birth mother at the time of concep - tion. 1.4 Requirements for Non-Genetic Parents A non-genetic parent may include a step-parent or adopted parent of a child. Non-genetic parents do not automatically have parental responsibility for a child, but must obtain a parenting order from the Court, including an order for either sole or joint deci - sion-making responsibility. If a child is adopted, an adoption order from the Supreme Court of the relevant State in Australia will be made, which will then perma - nently confer all legal responsibilities for the child on the adopted parents, including parental responsibility. If the non-genetic parent is classified as the “other intended parent” for the purposes of Section 60H(1) of the Family Law Act, the non-genetic parent will also automatically have parental responsibility for the child upon the child’s birth. A non-genetic parent will be classified as the “other intended parent” if they were: • married or the de facto partner to the birth mother at the time the artificial conception procedure occurred; and • the birth mother and the other intended parent consented to the procedure being carried out, and any other person who provided genetic material
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