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Same-Sex: Same Entitlements: Chapter 12

Same-Sex: Same Entitlements Report


 

Chapter 12. Family

Law

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12.1 What

is this chapter about?

This chapter addresses the problems facing a same-sex

couple on the breakdown of their

relationship.

The issue of divorce never arises

for same-sex couples, since they cannot legally marry. However, a same-sex

couple, like an opposite-sex de facto couple, may need the assistance of a court

to resolve property and child-related issues if their relationship breaks down.

Married, opposite-sex de facto and same-sex

couples can all access the federal Family Court to resolve child-related

matters. But some same-sex couples will be at a disadvantage when it comes to

the determination of parental responsibility and child support after a

relationship breaks down.

Only married couples

can access the federal Family Court to determine how to divide the property of a

relationship. Same-sex and opposite-sex de facto couples must currently go to

the relevant state or territory jurisdictions to decide property-related

matters. Accessing two different jurisdictions creates additional costs. In

addition, state and territory jurisdictions cannot consider the same range of

assets when making a property settlement. Thus de facto couples may end up with

less comprehensive property settlements than those available to married couples.

New legislation proposed by the federal

government should allow opposite-sex de facto couples to access the federal

Family Court for property matters. However the government has indicated that

this new legislation will not assist same-sex couples. If this occurs there will

be discrimination against same-sex couples as compared to opposite-sex de facto

couples.

Further, discrimination regarding the

care of children after relationship breakdown arises because the lesbian

co-mother and gay co-father of a child is not considered a ‘parent’

for the purposes of determining parental responsibility or child support

liability.

This chapter outlines in more detail

how family law discriminates against same-sex couples when a relationship breaks

down. The chapter examines the human rights breaches caused by this

discrimination and recommends changes to the law in order to address those

breaches.

Specifically, this chapter addresses

the following questions:

  • Why can’t same-sex couples access the federal

    Family Court for property settlements?

  • How are same-sex couples worse off in property

    settlements?

  • Do both same-sex parents have access to child

    support?

  • How is parental responsibility divided between same-sex

    parents on separation?

  • Does family law legislation regarding separation breach

    human rights?

  • How should family law legislation be amended to avoid

    future breaches?

For a discussion

about the recognition of same-sex relationships, see Chapter 4 on Recognising

Relationships. For a discussion about the recognition of the relationship of

same-sex parents and their children, see Chapter 5 on Recognising

Children.

12.2 Why

can’t same-sex couples access the federal Family Court for property

settlements?

If a married couple separates, they can go to the

federal Family Court of Australia to dissolve their marriage and resolve all

their property and child-related issues. However, for constitutional reasons, de

facto couples are denied access to the federal Family Court for property

matters.

The effect of this constitutional

anomaly is that, other than in Western Australia, a separating de facto couple

with children must initiate proceedings in two different jurisdictions if their

relationship breaks down.[1] They must

go to the relevant state or territory court to resolve property issues, and the

federal Family Court to resolve child-related issues.

12.2.1 Some

states and territories have referred power to the federal government

Over the past few years NSW, Queensland, Victoria and

the Northern Territory have agreed to refer their constitutional power regarding

property division to the federal

government.[2]

In other words those jurisdictions will give

up their power to deal with property division for de facto couples so that all

separating couples can have their property and child-related matters dealt with

in one court. It is envisaged that as a result of these referrals separating de

facto couples will have the same access to the federal Family Court as

separating married couples.

So far, all of the

constitutional referrals signed by the state and territory governments have

specified that de facto same-sex relationships are to be

included.[3]

12.2.2 The

federal government will not accept referrals regarding same-sex

couples

The federal government has indicated that while it

intends to accept the constitutional referral regarding opposite-sex de facto

couples, it does not intend to accept the referral of power regarding same-sex

couples.[4]

12.3 How

are same-sex couples worse off in property settlements?

At the moment, the federal Family Court can only deal

with property settlements between two ‘spouses’. A

‘spouse’ is defined as a party to a

marriage.[5]

If

the federal government accepts constitutional referrals of state power over

property division for opposite-sex couples, separating same-sex de facto couples

will be the only group of people denied access to the federal property division

regime.

Instead, same-sex couples will have to

use the state and territory property division regimes, which all include

same-sex couples within their

jurisdiction.[6]

12.3.1 The

federal property division regime has many benefits

The federal property division regime has the following

advantages over the state regimes. The federal property division

regime:

  • covers a larger pool of the couple’s shared

    assets, including superannuation

    assets[7]

  • tends to attribute a higher value to

    non-financial homemaking

    contributions[8]

  • has broader powers to make property orders or

    issue injunctions against third parties, including creditors and family

    companies which are not in the legal control of one

    partner[9]

  • includes broad consideration of future needs as

    well as past contributions when making property

    adjustments[10]

  • uses informal dispute resolution systems which

    are cheaper and faster than the state

    regimes[11]

  • contains provision for periodic or lump sum

    spousal maintenance payments where appropriate (such as in cases where one party

    has a very limited earning capacity or where a party has extensive financial

    resources but few assets available for

    division).[12]

In short, the federal property

division regime covers a larger pool of the couple’s shared assets, can

divide such assets with a far greater degree of flexibility, and takes into

account a wider range of factors and circumstances of the parties during and

after the relationship in making any adjustments.

12.3.2 Same-sex

couples cannot access these benefits

Since it appears that same-sex couples will continue

to be excluded from accessing the federal Family Court, they will remain at a

disadvantage regarding property

settlement.[13] Same-sex couples

with children will also face the additional cost and inconvenience of having to

access two jurisdictions.

The Equal

Opportunity Commission of Victoria describes the additional hurdles faced by

same-sex couples as follows:

Once the Commonwealth legislates to act upon the referral

of de facto spouse property matters pursuant to the Commonwealth Powers (De

Facto Relationships) Act 2004 under the Family Law Act heterosexual de facto

couples will be able to access the convenience of one jurisdiction to resolve

their property and child matters on the event of relationship breakdown;

significantly this will include access to primary dispute resolution procedures.

This will result in a significant advantage to heterosexual de facto couples and

the exclusion of same-sex de facto couples will cause significant detriment to

them and their children.[14]

12.4 Do

both same-sex parents have access to child support?

Generally, when a couple with children separates, one

member of the couple will have primary responsibility for caring for the child

and the other member of the couple will provide financial assistance to help

carry out that responsibility (child

support).

The Child Support (Assessment) Act

1989 (Cth) (Child Support (Assessment) Act) provides a formula for assessing

the amount of child support payable by a

‘parent’.

Chapter 5 on Recognising

Children notes that when children are born to a lesbian or gay couple their

parents may include a birth mother, lesbian co-mother, birth father or gay

co-father.[15]

The narrow definition of ‘parent’

in the Child Support (Assessment) Act means that a birth mother or birth father

cannot pursue child support from the lesbian co-mother or gay co-father of a

child – even if the co-parent had a parenting order to look after the

child.

12.4.1 Only

a birth or adoptive parent is a ‘parent’ for child support

purposes

A

‘parent’ is defined under the Child Support (Assessment) Act as

follows:

‘parent’ means:

(a) when used in relation to a child who has been

adopted--an adoptive parent of the child; and

(b) when used in relation to a child born because of the

carrying out of an artificial conception procedure--a person who is a parent of

the child under section

60H of the Family Law Act

1975.[16]

Section

60H of the Family Law Act 1975 (Cth) (Family

Law Act) makes presumptions about who are the ‘parents’ of a child

conceived through assisted reproductive technology (an ART child).

As discussed further in Chapter 5 on

Recognising Children, section 60H of the Family Law Act presumes that the woman

giving birth to the child (the birth mother) is always a ‘parent’ of

an ART child, irrespective of whether it is her egg involved in conception.

Section 60H of the Family Law Act also

presumes that the male partner of the birth mother (the birth father)

will be the parent of the ART child if he consents to the process, irrespective

of whether it is his sperm involved in

conception.

However, the Family Law Act does

not presume that the female partner of the birth mother (lesbian

co-mother) is a parent of the ART child if she consents to the

process.

Thus, the lesbian co-mother of an ART

child will not be a ‘parent’ for the purposes of child support, even

though the birth father of an ART child born to an opposite-sex couple will be a

‘parent’.

Further, the male partner

of a birth father (a gay co-father), and any other person who takes on a

parenting role (social parent), will also be excluded from the definition of

‘parent’. This is the case even if the social parent had a parenting

order in respect of the child before the couple separated. Chapter 5 on

Recognising Children explains why this may be important for many same-sex

couples caring for children.

12.4.2 A

lesbian co-mother and gay co-father may be an ‘eligible carer’

A person will be an ‘eligible carer’ if he

or she is:

(a) a person who is the sole or principal provider of

ongoing daily care for the child

(b) a person who has major

care of the child

(c) a person who shares ongoing daily care of the child

substantially equally with another person

or

(d) a person who has substantial

care of the child.[17]

Therefore, a person in a same-sex couple need

not be a ‘parent’ to qualify as an ‘eligible carer’.

This gives scope for any of the birth mother, birth father, lesbian co-mother,

gay co-father(s) or social parent(s) with a parenting order to be an

‘eligible carer’.

However, a

‘parent’ or ‘legal guardian’ (a person with a parenting

order) has some control over who else may qualify as an ‘eligible

carer’.[18] People other than

a ‘parent’ or ‘legal guardian’ can only be an

‘eligible carer’ if:

  • the child is in the person’s care with the

    consent of the parent or legal

    guardian[19]

or

  • the child is in the care of the person without

    the consent of the parent or legal guardian, and the Family Court Registrar

    believes that it would be unreasonable for the child to be in the care of the

    parent or legal

    guardian.[20]

12.4.3 Only

a ‘parent’ is liable for child support

To pursue child support a person must be an

‘eligible carer’.[21] But the only person liable to pay child support is a ‘parent’. Under

the Child Support (Assessment) Act, there can only be one ‘parent’

in a same-sex couple.

Therefore, if a same-sex

couple separates and the child ends up with the lesbian co-mother or gay

co-father with a parenting order (‘eligible carer’), that eligible

carer can pursue child support from the birth mother or birth father

(‘parent’).

But if the child ends

up with a birth mother or birth father (‘parent’), that parent

cannot pursue the lesbian co-mother or gay co-father for child

support.[22]

A parent of a lesbian mother told the Inquiry

that:

If separation occurs, my daughter could be left to totally

supporting herself and her daughter...Ironically even fathers who don’t

pay maintenance are still recognised as

parents.[23]

A

mother told the Inquiry:

I have two daughters one is four months old and one is two

years old. The four month is my biological daughter and the two year old is the

biological daughter of my partner. ACT law allows us both to be considered

parents. But this does not help us with issues covered by Commonwealth law, for

example child support on

separation.[24]

12.5 How

is parental responsibility divided between same-sex parents on

separation?

The division of parental responsibility after

separation can have flow-on effects for the purposes of child support and other

financial benefits throughout a child’s life.

Some submissions to the Inquiry expressed

concern about how parental responsibility is divided between same-sex parents on

separation.[25] Changes to the

Family Law Act on 1 July 2006 enhanced the rights of the people recognised as a

‘parent’ under that

legislation.[26] This may

disadvantage the lesbian co-mother and gay co-father who may have been caring

for a child since birth.

12.5.1 Only

a birth or adoptive parent is a ‘parent’ for family law

purposes

The Family Law Act defines a parent to include an adoptive parent.[27] The

definition assumes that a birth mother and birth father will be a parent. This

will include the male partner (birth father) of a woman having an ART child, but

exclude the female partner (lesbian

co-mother).[28]

The definition of parent will also exclude the

gay co-father and any other same-sex parent who has a parenting order in his or

her favour. A person with a parenting order will be one of the ‘other

people significant to [the child’s] care, welfare and development’,

but not a

‘parent’.[29]

12.5.2 Spending

time with a ‘parent’ is a primary consideration on

separation

When deciding custody arrangements on separation, the

Family Court must focus on a child’s best interests. Under the new

amendments, the child’s best interests are divided into

‘primary’ and ‘additional’

considerations.[30]

The Family Court must consider the

‘benefit to the child of having a meaningful relationship with both of the

child’s parents’ as a primary

factor.[31]

The relationship between a child and any other

person, including a lesbian co-mother and gay co-father, will be an

‘additional’ consideration for the Family Court, but not a primary

consideration.[32]

Therefore,

the lesbian co-mother and gay co-father will be at a disadvantage when trying to

gain custody of a child after separation – even if he or she has a

parenting order in favour of the child, and has otherwise cared for the child

since birth.

12.5.3 The

narrow definition of ‘parent’ creates uncertainty for a child on

separation

The Inquiry heard from a number of people who are

concerned that the children of a same-sex couple are not adequately protected

following separation.

The Action Reform Change

Queensland (ARCQ) and Queensland AIDS Council comment:

[We] are aware of some same sex couples for whom ongoing

contact with children is difficult for the non-biological partner following a

break down of the relationship. This is exacerbated by the lack of protection at

family law and in federal legislation. While the [HREOC] research paper

acknowledges that some people may be recognised if they have a parenting order

through the Family Court, it is understood that this is an expensive way to gain

parenthood status and in practical terms may not be widely

used.[33]

One

parent told the Inquiry of the uncertainty that can be created when a biological

parent dies:

In a same-sex relationship where there’s children

concerned, if the biological mother does pass away, the child does not

automatically get to stay with the non-biological parent...If one member of the

biological mother’s family comes forth to take that child out of that

house, that child is gone. You would have to fight it in the Family Court

– it is not a right of ours for the child to stay where it has grown

up.[34]

12.6 Does

family law legislation regarding separation breach human

rights?

This chapter sets out the difficulties facing same-sex

families on separation.

The first problem is

that same-sex (and opposite-sex) de facto couples cannot access the federal

Family Court property division regime, which has significant advantages over

state property regimes. New legislation proposed by the federal government would

allow opposite-sex de facto couples to access the federal regime but not

same-sex couples.

If this new legislation

comes into force in its intended form, it will breach the right of same-sex

couples to non-discrimination under article 26 of the International Covenant

on Civil and Political Rights (ICCPR).

The

second problem is that a narrow definition of ‘parent’ in the Family

Law Act and the Child Support (Assessment) Act puts some same-sex couples at a

disadvantage when it comes to the determination of parental responsibility and

liability for child support. In particular, a birth mother or birth father is

unable to pursue child support from a lesbian co-mother or gay co-father.

Thus, the main finding of this chapter is that

the exclusionary definition of ‘parent’ in the Child Support

(Assessment) Act and the Family Law Act breaches the right to non-discrimination

under article 26 of the ICCPR.

This

discrimination against same-sex parents may also result in a breach of

Australia’s obligations under the Convention on the Rights of the

Child (CRC). This is because:

  • the best interests of a child being raised in a

    same-sex family do not appear to be a primary consideration – if they

    were, a same-sex parent could pursue child support from his or her former

    partner and the child’s relationship with both his or her same-sex parents

    would be a ‘primary’ consideration in determining custody

    arrangements (CRC, articles 2(1), 3(1))

  • the narrow definition of ‘parent’ in the

    Child Support (Assessment) Act and the Family Law Act does not recognise and

    support the common responsibilities of both same-sex parents to

    fulfil child-rearing responsibilities (CRC, article 18(1), article

    2(1))

  • a same-sex parent who is unable to pursue child support

    from his or her former partner may be at a financial disadvantage when compared

    to an opposite-sex parent in the same position. This amounts to discrimination against the child on the basis of the status of his or her

    parents (CRC, article 2(2))

  • the narrow definition of ‘parent’ in the

    Family Law Act creates uncertainty for the child of a same-sex couple when their

    parents separate. This may amount to discrimination against the child on

    the basis of the status of his or her parents (CRC, article

    2(2)).

There may also be a breach of

the right to protection of the family without discrimination under the ICCPR

(articles 23(1), 2(1)) and the International Covenant on Economic, Social and

Cultural Rights (articles 10, 2(2)).

Australia’s human rights obligations to

same-sex couples and families are set out in more detail in Chapter 3 on Human

Rights Protections.

12.7 How

should family law legislation be amended to avoid future

breaches?

Same-sex families face a range of hurdles on

relationship breakdown.

Same-sex and

opposite-sex de facto couples are denied access to a range of property

settlement mechanisms which are available to married couples, because of

constitutional limitations.

The birth parents

of a child cannot pursue child support against the lesbian co-mother or gay

co-father. And the lesbian co-mother and gay co-father do not have equal

consideration as the birth parents in determining custody

arrangements.

The following sections summarise

the cause of the problems and how to fix them.

12.7.1 Narrow

definitions of ‘parent’ are the main problem in child support and

family law on separation

The narrow definition of ‘parent’ in the

Child Support (Assessment) Act and the failure to recognise the lesbian

co-mother of an ART child as a ‘parent’ under the Family Law Act

creates discrimination against same-sex parents and children. These definitions

should change.

The problem of denying same-sex

(and opposite-sex de facto) couples access to the federal property division

regime is caused by constitutional issues. But it can be rectified if the

federal government accepts the referral of constitutional power being offered by

state governments.

12.7.2 The

solution is to amend the definitions and recognise both same-sex parents

Chapter 5 on Recognising Children sets out how to

better protect the rights of both the children of same-sex couples and

the parents of those children.

The Inquiry

recommends that the federal government implement parenting presumptions in

favour of a lesbian co-mother of an ART child. This would mean that a lesbian

co-mother would automatically be a ‘parent’ (in the same way as a

father of an ART child is a

‘parent’).

Chapter 5 also suggests

that it should be easier for a lesbian co-mother and gay co-father to adopt a

child. Again, if this occurred then they would automatically qualify as a

‘parent’.

The Inquiry also

recommends that the federal government pass legislation accepting the referral

of state power regarding property division between opposite-sex and same-sex separating couples.

The following list

sets out the definitions which would need to be amended according to these

suggested approaches.

12.7.3 A

list of legislation to be amended

The Inquiry recommends amendments to the following

legislation discussed in this

chapter:

Family Law Act 1975 (Cth)

Parenting presumptions for an ART child (s 60H –

amend to include a parenting presumption in favour of a lesbian

co-mother)

‘parent’ (s 4 – no need to amend if s

60H is amended and a gay co-father or lesbian co-mother may be recognised

through reformed adoption laws)

Child Support (Assessment) Act 1989 (Cth)

‘eligible carer’ (s 7B – no need to

amend if ‘parent’ recognises a gay co-father or lesbian co-mother

through reformed parenting presumptions or adoption laws)

‘parent’ (s 5 – no need to amend if

section 60H of the Family Law Act is amended and a gay co-father or lesbian

co-mother may be recognised through reformed adoption laws)

12.7.4 New

legislation should accept constitutional referrals regarding property division

for separating same-sex couples

Same-sex and opposite-sex de facto couples should both

have access to the federal Family Court for property and child-related matters.

This requires:

  • all states to refer their constitutional powers to the

    federal government regarding same-sex and opposite-sex de facto

    couples

  • the federal government to accept those

    referrals.

Once those referrals are

accepted there may need to be following consequential

amendments:

Family Law Act 1975 (Cth)

‘spouse’ (s 90MD – amend to include a

person in a ‘de facto relationship’)

‘de facto relationship’ (insert new

definition).[35]


Endnotes

[1] Western Australia administers its own Family Court. Since the introduction

of the Family Court Amendment Act 2002 (WA), the Western Australian

Family Court administers child-related matters and property settlements for

married and de facto (including same-sex)

couples.
[2] Commonwealth Powers (De Facto Relationships) Act 2003 (NSW); Commonwealth Powers (De Facto Relationships) Act 2003 (Qld); Commonwealth Powers (De Facto Relationships) Act 2004 (Vic); De Facto Relationships (Northern Territory Request) Act 2003 (NT).
[3] Commonwealth Powers (De Facto Relationships) Act 2003 (NSW), ss 3-4; Commonwealth Powers (De Facto Relationships) Act 2003 (Qld),

ss 3-4; Commonwealth Powers (De Facto Relationships) Act 2004 (Vic), ss 3-4; De Facto Relationships (Northern Territory Request) Act 2003 (NT), ss

3-4.
[4] Gabrielle Mackey, A/g Assistant Secretary, Human Rights Branch,

Attorney-General’s Department, to Vanessa Lesnie, Director, Human Rights

Unit, Human Rights and Equal Opportunity Commission, 16 November

2006.
[5] Family Law Act 1975 (Cth), s

90MD.
[6] See J Millbank, ‘Recognition of Lesbian and Gay Families in Australian

Law – Part One: Couples’, Federal Law Review, vol 34, no 1,

2006, p39. Note that the Statutes Amendment (Domestic Partners)

Act 2006 (SA) had not commenced as at 10 April 2007. When the Act does

commence, the SA property division regime will apply to same-sex

couples.
[7] State regimes are unable to divide superannuation assets, which often make

up a significant portion of a couples’ asset pool. Since 2002 the Family Law Act 1975 (Cth) grants the power under pt VIIIB to deal

with superannuation funds of the parties to a marriage. Some state

superannuation legislation specifies that state public superannuation benefits

are an asset for the purposes of federal family law property division schemes. A

same-sex partner is thereby explicitly excluded from accessing this benefit on

separation: J Millbank, ‘Recognition of Lesbian and Gay Families in

Australian Law – Part One: Couples’, Federal Law Review, vol

34, no 1, 2006, pp39-40. See also Judges Pensions Act 1971 (SA), pt 2A; Parliamentary Superannuation Act 1974 (SA), pt 4A; Police Superannuation Act 1990 (SA), pt 5B; Southern State

Superannuation Act 1994 (SA), pt 5A; Superannuation Act 1988 (SA), pt 5A; Solicitor-General Act 1983 (Tas), sch 1; Administrators Pensions Act (NT), s 9; Superannuation Act (NT), pt

3, Division 3; Superannuation Guarantee (Safety Net) (NT) s

7.
[8] See J Millbank, ‘Recognition of Lesbian and Gay Families in Australian Law

– Part One: Couples’, Federal Law Review, vol 34, no 1, 2006,

p39. See also L Willmott, B Matthews and G Shoebridge, ‘De facto

Relationships Property Adjustment Law – A National Direction’, Australian Journal of Family Law, vol 17, January 2003; In the

Marriage of Waters and Jurek,(1995) 19 FamLR 190; B

Fehlberg, ‘With all my Worldly Goods I Thee Endow?: The Partnership Theme

in Australian Matrimonial Property Law’, International Journal of Law,

Policy and the Family, vol 19, no 2, 2005, pp176 -193.
[9] J Millbank, ‘Areas of Federal Law that Exclude Same-Sex Couples and their

Children’, Inquiry Research Paper, September 2006, available at

http://www.humanrights.gov.au/samesex/index.html, p49. See Family Law Act

1975 (Cth), ss

90AC-AF.
[10] Family Law Act 1975 (Cth), ss 75(2), 79. Only half of the

state and territory regimes consider any form of future needs, and not all do so

as broadly as the federal regime. Tasmania and the ACT are the broadest:

see Domestic Relationships Act 1994 (ACT), s 15(1)(e); Relationships

Act 2003 (Tas), ss 40(1)(e),

47.
[11] For example, family dispute resolution and family arbitration are available at

the federal Family Court: Family Law Act 1975 (Cth), ss 10F, 10L.
[12] Family Law Act 1975 (Cth), s 75(2). Spousal maintenance provisions vary

between states and territories and in some cases can be more restrictive than

the federal Family Law Act 1975 (Cth). See Property (Relationships)

Act 1984 (NSW), ss 26-27; Evans v Marmont (1997) 42 NSWLR 70

at 78-79; De Facto Relationships Act 1991 (NT), ss 24, 26; Domestic

Relationships Act 1994 (ACT), ss 18-19. In Tasmania see Relationships Act

2003 (Tas), s 47. Queensland, South Australia and Victoria have no

maintenance provisions for de facto couples at all: Property Law Act 1958 (Vic); De Facto Relationships Act 1996 (SA); and Property Law Act 1974 (Qld).
[13] See also Associate Professor Jenni Millbank, Submission 27a; Australian Lawyers

for Human Rights, Submission 286; Dr Samantha Hardy, Dr Sarah Middleton and Dr

Lisa Butler, Submission 125; Gay and Lesbian Rights Lobby (NSW), Submission 333;

Human Rights Law Resource Centre, Submission 160; Kingsford Legal Centre,

Submission 309; Law Institute of Victoria, Submission

331.
[14] Equal Opportunity Commission of Victoria, Submission

327.
[15] For an explanation of these terms see the Glossary of

Terms.
[16] Child Support (Assessment) Act 1989 (Cth), s

5.
[17] Child Support (Assessment) Act 1989 (Cth), s

7B(1).
[18] There is no definition of ‘legal guardian’ in the Child Support

(Assessment) Act 1989 (Cth). ‘Guardianship’ is a term that has

not been used for some years in the Family Law Act 1975 (Cth), where it

was replaced by the concept of ‘parental responsibility’. By

implication, it seems likely that a person with parenting orders granting them

sole or shared parental responsibility under the Family Law Act 1975 (Cth) would be taken as a ‘legal guardian’ for the purposes of the Child Support (Assessment) Act 1989 (Cth). See Family Law Act 1975 (Cth), ss 61B, 61D,

64B(1).
[19] Child Support (Assessment) Act 1989 (Cth), s

7B(2).
[20]Child Support (Assessment) Act 1989 (Cth), s 7B(3).
[21] Child Support (Assessment) Act 1989 (Cth), s

25.
[22] The only avenues available would be to pursue a promissory estoppel claim or

a limited maintenance claim under state property law – both avenues are

expensive and uncertain. See W v G (1996) 20 Fam LR 49. Under the Property (Relationships) Act 1984 (NSW), s 27, maintenance

is only available on very limited

grounds.
[23] Speaker, Launceston Public Forum, 25 September

2006.
[24] Liz, Canberra Hearing, 20 November 2006. See also Inner City Legal Centre,

Submission 292; The Hon. Penny Sharpe MLC, Submission

341.
[25] See also Australian Lawyers for Human Rights, Submission 286; Coalition of

Activist Lesbians, Submission 171; Good Process, Submission 284; The Hon. Penny

Sharpe MLC, Submission

341.
[26] Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).
[27] Family Law Act 1975 (Cth), s 4. See further Chapter 5 on Recognising

Children.
[28] Family Law Act 1975 (Ct