Biology, Parentage and Responsibility in Australian Family Law: Accounting for the 'Vagaries of Nature'

Abstract

The Australian Family Law Act 1975 (Cth) identifies the family as the 'natural and fundamental group unit of society' (s. 43B (b)). The ideal family of mother, father and biological offspring has long been a normative construction within Australian society. This construction is infused with great ideological value and invested with assumptions about rights and responsibilities of family members. As Chambers argues, '[m]eanings about the family and gender roles are essentialised and fixed not through a single site but through a range of discursive sites, including biological, scientific, psychological and historical codes of knowledge that attempt to universalise and de-historicise the family' (2001: 53). Another such discursive site is law. The construction of the natural family incorporates both social and biological relationships, but increasingly the biological and social aspects of family and kinship are configured as dichotomous, with biological relationships being conceived as more authentic and inexorable than socially inscripted ones. Given the paramountcy in family law of promoting the best interests of the child, assigning parental responsibility according to biological connections is likely to be seen as securing long-term and enduring care for children.