The Australian Human Rights Commission conducted a report entitled Same-Sex: Same Entitlements which was published in 2007. One of the questions they asked in this report is: What is the legal status of child-parent relationships in same-sex families?
Their findings were based on the 2001 census – “It is important to understand the legal status of parent-child relationships in same-sex families in order to determine how the various federal law definitions of ‘child’, ‘dependent child’ and ‘dependant’ apply to those families.
The most recent 2016 Australian census results suggest that approximately 20% of lesbian couples and 5% of gay male couples in Australia are raising children. These child-parent relationships arise in many different ways.
Some children are born to one member of a same-sex couple during an earlier opposite-sex relationship. Many children are born to lesbian couples using donor sperm and ART (assisted reproductive technology). Some children are being born into and raised by gay male couples with the help of a female friend or through a surrogacy arrangement. A few children may be adopted by one or both members of a same-sex couple.”
Under the Family Law Act both parents of a child are responsible for the care, welfare and development of their child – regardless of whether they are married, separated or have never lived together.
Historically, a parent was defined as a biological and/or adoptive parent and, therefore, non-biological parents were not considered “parents” unless they had either:
a) legally adopted the child; or
b) obtained a parenting order formalising their rights and responsibilities in respect of the child.
By law, lesbian couples have the same parental rights as heterosexual couples. These amendments do not, however, apply to gay male couples who must still either adopt or obtain parenting orders to legally formalise their parental rights.
It is important for gay male couples to be aware that a sperm donor is not legally deemed to be a parent of any child conceived through an artificial insemination procedure.
This means that a male couple who conceive a child with a woman via artificial insemination are not legally deemed to be the parents of that child, even though the partner who donated sperm is biologically the child’s father. Rather, the biological mother and her partner (if she has one) will be deemed to be the child’s parents. This applies regardless of the intention of the parties and whether the biological mother’s partner is male or female.
In this situation, the only way for a gay male couple to formalise their parental rights is by adopting the child – which can be a long and expensive process – or by obtaining parenting orders from the Family Court.
A lesbian couple who conceive a child through artificial insemination are, subject to certain conditions, legally considered to be the parents of that child. This is provided that the couple has been living together in a de facto relationship at the time the child was conceived, and that both parties have consented to the procedure being undertaken. If these conditions are not met, then the non-biological mother is not legally considered to be the other parent of the child.
If a child is conceived through a donor who is known to the parents, it would be prudent for all parties involved to obtain independent legal advice and create a donor agreement. A donor agreement is not legally binding; however, it demonstrates the intention of all parties when the child was conceived and will avoid any doubt as to the donor’s role in the child’s life.
A donor agreement will, to a certain extent, protect both the donor’s rights and protect the rights and role of the non-biological parent. It will not prevent a donor from being able to bring an application in the Family Court seeking contact with the child, however the agreement can be used as evidence of the parties’ intention at the time the child was conceived.
Traditionally, Parenting Orders have been used to formalise child care and living arrangements following the breakdown of a marriage or de facto relationship. They are now also increasingly used by gay male and lesbian couples who wish to formalise their parental rights in respect of their child (or children).
Although the rights of lesbian parents are now protected by law, it is still prudent for couples to apply for Parenting Orders to protect the non-biological parent’s role within the child’s life. This ensures that the non-biological parent has the same rights under law as the biological parent, such as the legal right to make decisions in relation to schooling, medical care, religion etc.
Gay male couples will need to either obtain Parenting Orders or adopt in order to legally be deemed the parents of their child. Gay male couples who do not formalise their parental rights in this way will not have the legal right to make decisions in relation to their child (ie. decisions in relation to schooling, medical care, religion etc).
The Family Law Act requires that the parties involved try to reach agreement about what happens to their child in the event that their relationship breaks down.
Where there is agreement as to the amount of time each party spends with the child, this can be drawn up as a Parenting Order and lodged with the Family Court. This formalises the non-biological parent’s legal rights and responsibilities for the child.
However, if a shared parenting arrangement cannot be reached and the parties dispute either:
a) the amount of time each party should have with the child; or
b) whether a party should be able to share equal parental responsibility for the child,
then either party can apply to the Court for a parenting order.
In a gay male relationship where there has been no formal adoption or there are no orders specifying parental responsibility for the child, a party may apply to the Family Court as a “person concerned with the care, welfare and development of the child”.
In this instance, the Family Court will usually order the parties to attend a conference with a family consultant. Family consultants are qualified social workers or psychologists, with expertise in working with children and families, and are appointed by the Court. The family consultant will present a report to the Court containing their recommendations for what arrangements will best meet the future care, welfare, and developmental needs of the child. This will include recommendations as to who the child should live with and what time they should spend with each party.
SHAW Dispute Resolution have Family Dispute Resolution Practitioners (FDRP) all over Australia and are available to assist you and your family discuss your parenting intentions and post separation
parenting arrangements and family dispute resolution (FDR) should the need arise. This includes discussions involving parental rights and responsibilities in same sex relationships.