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Same-Sex: Same Entitlements: Chapter 5

Same-Sex: Same Entitlements Report


Chapter 5. Recognising

Children of Same-Sex Couples

Download Chapter 5: [ PDF] [ Word ]

5.1 What

is this chapter about?

Protecting the best interests of a child is one of the

most important principles of international law and the Convention on the

Rights of the Child (CRC) in particular. This chapter focuses on whether

federal law currently protects the best interests of a child being raised by

lesbian or gay parents.

In particular, this

chapter examines whether the definitions of ‘child’,

‘dependent child’, ‘dependant’ and other terms

describing a family relationship between a parent and child incorporate children

being raised in same-sex families.

The way a

family is defined by law has enormous impact on the financial and work-related

entitlements available to help children and parents. Some entitlements are

targeted at parents, to help them financially support their children. Other

entitlements are intended to go directly to children themselves – for

example when a parent dies. Either way, the primary purpose of these

entitlements should be to protect the best interests of the

child.

Families headed by same-sex couples

already exist in our community. And with the advent of assisted reproductive

technology (ART), more and more lesbian and gay couples are having children.

While federal laws recognise the relationship between an opposite-sex couple and

a child conceived through ART, they do not recognise the relationship between a

same-sex couple and a child conceived through ART. In addition, federal laws do

not currently contemplate that a lesbian co-mother or gay co-father may well be

a child’s primary caregiver despite the absence of

biology.

Whether or not same-sex parents or

their children can access financial and work-related entitlements under federal

law depends on legal presumptions as to who is a person’s child, and their

application to legislative definitions of ‘child’, ‘dependent

child’, ‘dependant’ and other similar

terms.

This chapter gives an overview of the

legal presumptions and legislative definitions and considers whether children in

same-sex families can enjoy the same financial environment as children in

opposite-sex families.

The Inquiry is aware

that many people have strong views about whether same-sex couples make

appropriate parents. The Inquiry received a number of submissions suggesting

that families headed by an opposite-sex couple are the only appropriate form of

family.

However, the reality is that same-sex

families do exist. And the Inquiry does not accept that one set of parents

should have to struggle harder than another set of parents to protect the best

interests of their child, purely on the basis of their sexuality. Laws that

perpetuate such inequalities are unjust and should be changed. They are also

contrary to international human rights law.

This chapter sets out the circumstances under

which a same-sex couple may become parents of a child and how federal law

currently treats that relationship in the context of financial and work-related

entitlements. The chapter then discusses how federal law should be changed to

ensure greater protection of the interests of children born to and raised by gay

and lesbian couples.

More specifically, this

chapter addresses the following questions:

  • What is the legal status of child-parent relationships in

    same-sex families?

  • How are same-sex families treated under federal financial

    laws?

  • How are same-sex families treated under state and

    territory financial laws?

  • How should federal law change to protect the best

    interests of all children?

5.2 What

is the legal status of child-parent relationships in same-sex

families?

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 Australian census

results suggest that approximately 20% of lesbian couples and 5% of gay male

couples in Australia are raising

children.[1] 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.[2] 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.

Felicity Martin and Sara

Lowe explain how much thought they put into forming a family:

Felicity and I have been in a relationship for 6 years. We

have spent 4 years trying to have a family. Two of those years were spent

planning and making decisions, for example which clinic, known donor or unknown

etc. No children of GLBTI people are born by accident. We go to great lengths

and great expense to create these

families.[3]

There are many more ways that a same-sex

family may come about. This section does not seek to describe all the family

forms in which a particular child may be raised. The following text discusses

how family law treats the relationship between a child and his or her same-sex

parents.

The Glossary to this report

summarises the terms used in this chapter, and in following chapters, to

describe the different child-parent relationships.

5.2.1 General

family law framework applying to children and their parents

In considering all of the following scenarios, it is

important to keep in mind that the Family Law Act 1975 (Cth) (Family Law

Act) makes the best interests of a child a primary consideration in all

decisions relating to children.[4]

In assessing the best interests of children,

family law looks at the role of ‘both of their parents’ and

‘other people significant to their care, welfare and

development’.[5] In other words,

family law operates on the assumption that a child will have one or two legal

parents and possibly ‘other people significant to their care’.

(a) Birth

parents and adoptive parents are a child’s legal parents

Under family law, a child’s two legal parents

are generally the woman who bears the child (the birth mother) and

the male partner of the birth mother, if there is one (the birth father).

These are generally the two people who are recorded on the child’s birth

certificate as parents, which will be evidence of the legal relationship

throughout the child’s

life.[6]

Alternatively,

if a child has been adopted, the child’s legal parents will include the

parents who adopt him or her.[7] Adoptive parents can also be added to a birth

certificate.[8]

(b) Birth

parents and ‘other people significant to care’ in an opposite-sex

family

A child born to an opposite-sex couple will generally

have a birth mother and a birth father and both of them will be legal

parents.

However, a child being cared for in an

opposite-sex family may well have other people significant to their care and

welfare.

The ‘other people significant

to the care’ of a child raised by an opposite-sex family are typically the

subsequent partners of separated birth parents (social

parents).[9] Social parents can

formalise their parenting relationship by applying to the Family Court of

Australia for a parenting order.[10] However, a social parent with a parenting order will not always have the same

financial and work-related entitlements as the birth mother or birth

father.

(c) Birth

parents and ‘other people significant to care’ in a same-sex

family

A child born to a lesbian couple will generally have a birth mother and a lesbian co-mother. The birth mother will be a

legal parent under the current family law system.

A child born to a gay couple will often have a birth father and a gay co-father, as well as a birth mother.

Alternatively, a child may have two gay co-fathers as well as a birth

mother. If there is a birth father, he will be a legal parent.

The lesbian co-mother or gay co-father(s) can

apply to the Family Court of Australia for a parenting order, as ‘other

people significant to the care, welfare and development’ of the child. But

the lesbian co-mother and gay co-father(s) will be treated in the same way as a

social parent is treated under the law; they will not be treated in the same way

as a birth parent.

In other words, federal law

does not currently recognise the distinction between a person who is a subsequent partner of a birth mother or birth father, and a person in a

same-sex couple who is either the partner of the birth mother or birth father

or an active co-parent at the time a child is born.

This means the lesbian co-mother or gay

co-father(s) may be denied financial and work-related entitlements available to

a birth mother and birth father, even though they are the original and intended

parents of the child.

The failure to make this

distinction can compromise the best interests of a child born into a lesbian or

gay family, because that child’s parents will not have the same

entitlements as the opposite-sex parents of another child.

The failure to recognise both gay or lesbian

parents of a child may breach a child’s right to identity under the

articles 7 and 8 of the CRC. It may also breach Australia’s obligation to

support and promote the common responsibilities of both parents in

raising a child (article 18). These rights are discussed in greater detail in

Chapter 3 on Human Rights Protections.

The

following explains the various parenting scenarios in more detail.

5.2.2 A

child born to a same-sex couple will often have only one legal

parent

Ever increasingly children are being born to lesbian

and gay couples. However, where a child born to a lesbian or gay couple is

conceived through ART, federal law only recognises the birth mother of the child

as the legal parent. And where a child is conceived through intercourse, federal

law only recognises the two people involved in intercourse as legal parents.

This puts the lesbian co-mother and gay

co-father(s) at a significant disadvantage when attempting to access financial

and work-related benefits intended to help support a

family.

(a) A

child born to a lesbian couple usually has a birth mother and lesbian

co-mother

A lesbian couple can bring a child into the world

through ART using donated sperm. The woman bearing the child will be the birth

mother and her partner at the time of birth will be the lesbian co-mother. A

sperm donor is not generally considered a legal parent under the applicable

federal, state and territory laws regulating

ART.[11]

(i) Federal

law does not recognise a lesbian co-mother as a legal parent of an ART

child

Under federal law, the child of a lesbian couple

conceived through ART will have only one legal parent – the birth mother.

Compare this to the ART child of an

opposite-sex couple where both the woman and man consenting to the process of

ART are presumed to be the child’s legal parents, as long as they

are in a genuine couple.[12] Federal, state and territory law recognises that the important thing is that the

couple intend to have a child together – not the biology or technology

involved in conception. However, federal law does not extend this logic to a

lesbian couple.

(ii) WA,

ACT and NT law recognises a lesbian co-mother as a legal parent of an ART

child

In Western Australia (WA), Northern Territory (NT) and

the Australian Capital Territory (ACT), the birth mother and lesbian co-mother

of an ART child are presumed to be the legal parents of the child, if

they are in a genuine relationship when the child is

born.[13] They are both noted on the

child’s birth certificate, to the exclusion of the sperm

donor.[14]

One couple describe how fortunate they feel to

be living in the ACT where a same-sex couple can be recognised as a

child’s legal parents:

I feel fortunate to live in the ACT where at least some of

the forms of discrimination levelled against those in same-sex relationships

have been legislated against. For example, were I to give birth to a child

through assisted conception, my partner's name goes on the birth certificate as

that child's parent which is exactly what she would be. This is because in the

ACT the term domestic partner includes partners in same-sex relationships and so

where that term is used in ACT legislation my partner and I can essentially

claim de facto status. This reflects how we live and who we are and we applaud

the Stanhope government for achieving these reforms in relation to same-sex

relationships.[15]

It

is unclear how a birth certificate from WA, NT and the ACT will be regarded

under federal laws.

The Family Law Act

presumes that a person who is noted as a parent on a birth register is the legal

parent of that child.[16] There is

therefore a strong argument that a lesbian co-mother noted on a birth

certificate from WA, NT and the ACT should be presumed the parent of a child

under federal law in the same way as the birth mother is presumed the

parent.

However, the Family Law Act has not

enacted parenting presumptions in favour of a lesbian co-mother. And the Family

Law Act does not appear to recognise the parenting presumptions created by the

WA, NT and ACT laws.[17] So it is

also possible that federal law will not recognise the birth certificates created

pursuant to those laws.

At best it is

uncertain whether a birth certificate noting a lesbian couple as parents will be

recognised for the purpose of federal financial laws.

(iii) A

child conceived through intercourse to a lesbian couple will have a birth

mother, birth father and lesbian co-mother

Intercourse is the least likely way a lesbian couple

will conceive a child.[18] Nevertheless it does occur.

When a child is

conceived through intercourse, the legal parents will usually be the woman

(birth mother) and the man (birth father) involved in

intercourse.[19]

The lesbian co-mother will not be recognised

as a legal parent under any state, territory or federal law, unless she adopts

the child from the birth father under the ‘step-parent adoption’

laws (see section 5.2.4 below).

(b) A

child born to a gay couple always has a birth mother and may have a birth father

and gay co-father or two gay co-fathers

A child born to a gay couple will always have a birth

mother (the woman bearing the child). The birth mother will be the legal mother

of the child under all federal, state and territory laws, unless she allows the

couple to adopt the child. This makes adoption a particularly important

mechanism for gay parents to obtain legal parental

status.

If the child is conceived through ART,

the birth mother will likely be the only legal parent and the gay couple will

both be co-fathers.

If the child is conceived

through intercourse, the two people involved (the birth mother and the birth

father) will generally be the legal parents and the gay partner of the birth

father will be the co-father.

(i) A

child conceived through ART to a gay couple will have a birth mother and two gay

co-fathers

There is no law in any state or territory which makes

a parenting presumption in favour of a gay co-father or gay couple conceiving a

child with a woman through ART. This is because a parenting presumption in

favour of the gay co-father would mean automatically displacing the legal rights

of the birth mother.

However, it is also

important to note that existing parenting presumption laws may displace the

legal rights of a gay man who donates his sperm to a woman with the intention of

raising that child. This is because, under the ART parenting presumptions for

opposite-sex and lesbian couples, a male donor to an ART process will only be a

legal parent if he is in a genuine domestic relationship with the birth

mother.[20]

Since a man in a gay couple will not be in a

genuine domestic relationship with the birth mother, neither he nor his gay

partner will be treated as legal parents unless adoption occurs.

(ii) A

surrogate mother is the legal mother unless adoption occurs

All states other than NSW and the ACT either prohibit

surrogacy agreements or limit access to the ART necessary to fulfil a surrogacy

arrangement.[21] As a consequence,

‘the combination of surrogacy and fertility regulation means that

surrogacy is an exceptionally unlikely possibility for gay men to have children,

at least within

Australia’.[22] However, even

if surrogacy does take place, the mother will be the legal parent, unless she

allows the couple to adopt the child.

(iii) A

child conceived through intercourse to a gay couple will have a birth mother,

birth father and gay co-father

If the child born to a gay couple is conceived through

intercourse the law will recognise the birth mother and the birth father (one of

the gay couple) as the legal parents.

5.2.3 A

lesbian co-mother or gay co-father(s) cannot be a step-parent to a

child

A step-parent is sometimes entitled to the same

financial and work-related benefits available to a legal (birth) parent. Thus

becoming a step-parent could be a useful mechanism for a lesbian co-mother or

gay co-father seeking access to the entitlements intended to assist parents

raise their children.

However, the federal

financial and work-related laws tend not to define who qualifies as a

‘step-parent’ or ‘step-child’ (see further section 5.3.3

below).

Further, under the Family Law Act a

person can only become a ‘step-parent’ of a child if he or she marries the birth parent and treats that child as a member of the

family.[23] Since a same-sex couple

cannot marry, neither a lesbian co-mother nor a gay co-father can become a

‘step-parent’ under the Family Law Act.

Therefore, a lesbian co-mother or gay

co-father will not qualify as a step-parent unless the federal financial laws

themselves define a ‘step-parent’ or ‘step-child’ more

broadly.[24]

5.2.4 A

same-sex couple, lesbian co-mother or gay co-father cannot generally adopt a

child

A

same-sex couple, lesbian co-mother or gay co-father would all be recognised as

the legal parents of a child in federal law if they could adopt that

child.[25] And adoptive parents can generally access the same financial and work-related

entitlements as birth parents.

In theory,

adoption should be a powerful tool for same-sex families who face biological

challenges to being birth parents. However, in practice, the adoption laws in

the various states and territories make it extremely difficult – and

sometimes impossible – for same-sex couples to adopt.

It is important to remember that the CRC

requires that the best interests of a child be the paramount consideration in adoption (article 21). Adoption laws which arbitrarily exclude a couple

on the grounds of sexuality will breach these rights because they fail to

consider the best interests of a particular child.

(a) A

same-sex couple can only adopt an unrelated child in WA and ACT

At present, only WA and ACT allow same-sex couples to

register for adoption of an unrelated

child.[26] However, even in those

states very few gay or lesbian couples successfully adopt children in

Australia.[27]

An opposite-sex couple can apply to adopt an

unrelated child under all state and territory

laws.[28]

(b) A

lesbian co-mother or gay co-father is unlikely to achieve ‘step-parent

adoption’

One member of a couple can apply to adopt the birth

child of the other member of the couple under ‘step-parent adoption’

laws. Theoretically this would be an effective mechanism for a lesbian co-mother

or gay co-father to obtain legal parental status regarding the child he or she

has been caring for from birth.

However, New

South Wales, Victoria, Queensland, South Australia and the Northern Territory do

not allow step-parent adoption for same-sex

couples.[29]

A lesbian co-mother or gay co-father could

apply to adopt the birth child of their partner in Western Australia, the

Australian Capital Territory and

Tasmania.[30] However, even those

laws contain a general presumption against making an adoption

order.[31] This is because an

adoption order severs the legal relationship between the child and one of the

child’s birth parents.

Due to the

serious consequences of an adoption order, all step-parent adoption laws

(including those applying to opposite-sex couples) contain a strong preference

for dealing with new parenting arrangements through a parenting order rather

than an adoption

order.[32]

The

Victorian Law Reform Commission (VLRC) argues that the presumptions against

step-parent adoption may not be appropriate for some same-sex couples. In the

case of a lesbian co-mother of an ART child there is unlikely to be a competing

interest.[33] In the case of other

lesbian or gay co-parents, there may be consensual agreements between the

various people seeking to raise a child. The Inquiry supports amendments to

legislation which open up additional options for a lesbian or gay couple to

attain legal status and therefore better protect the best interests of their

child.

(c) Overseas

adoptions by gay and lesbian couples may not be recognised in Australia in the

future

It appears that surrogacy and adoptions occurring

overseas may not be recognised under Australian law in the future. As at March

2007, the federal government’s list of legislation proposed for

introduction includes the Family Law (Same Sex Adoption) Bill. The Bill

is described as legislation to amend the Family Law Act 1975 to

indicate that adoptions by same sex couples of children from overseas under

either bilateral or multilateral arrangements will not be recognised in

Australia’. However, the Bill is not available and it is unclear what will

be the final form of the legislation (if it is indeed

introduced).

(d) Restrictive

and discriminatory adoption laws have a particularly serious impact on the

children of gay couples

A lesbian co-mother may become a legal mother through

a parenting presumption in her favour (although for the moment that is limited

to ACT, WA and NT). But it is particularly difficult for a gay couple to become

a legal parent of their child without adoption.

A gay male couple cannot have a child, whether

through ART or intercourse, without involving a child-bearing woman. The Inquiry

does not support the enactment of parenting presumptions which would

automatically remove the rights of a child-bearing woman. Rather, it should be

possible for a gay couple to adopt an unrelated child, or a child born through

ART to a surrogate or friend, after the birth mother has made a positive

decision to transfer her legal parenting

rights.

However, the limited scope of state and

territory adoption and step-parent adoption laws severely limits the possibility

of adoption for gay and lesbian couples.

The

outright prohibition of adoption by same-sex couples in some states and

territories breaches article 21 of the CRC which requires that the best

interests of the child be the paramount consideration in adoption. The

other limitations may also compromise the best interests of the child under

article 3(1) of the CRC.

(e) Comments

from gay couples trying to adopt

Dr James Dowty compares adoption for same-sex couples

in Australia and the Netherlands. He argues that adoption provides greater

protection for children:

...I think it is important that same-sex couples should be

allowed to adopt children.  When the Dutch parliament was debating [legal]

recognition of same-sex relationships they decided that same-sex couples should

be given the same opportunities as opposite-sex couples to adopt.  In a

country where approximately 20% of lesbian couples have children from previous

relationships, this was mainly seen as a way of ensuring the best outcome for

the children in the event of the death or incapacity of the biological

parent.  Australian children deserve the same protections as Dutch children

in such

situations.[34]

Frank

Gomez comments on his experience when considering adoption:

I have over the years enquired about adopting a child, as

I think this would be an option I would like to entertain if I was ever in a

long term, serious relationship again. However I have found that it is

impossible for gay men to even be considered for adoption, regardless of income,

character or [the] seriousness of their

relationships.[35]

In

his submission Marcus Blease discusses the issues of surrogacy and adoption for

gay male couples:

My partner and myself would like to adopt a child. We

would consider surrogacy from the US, however this is too expensive. We are

however prohibited from adopting here and may have to move to the UK to do

this if the law isn't changed within the next 5 years. If I sold a house I

own in the UK we will consider surrogacy as a last resort, however this brings a

set of discrimination as long as your arm. We would receive no family tax breaks

as heterosexual couples, one of us would receive little federally

recognised parenting rights of the child (the non biological

one).[36]

5.2.5 A

lesbian co-mother or gay co-father(s) can seek a parenting order as ‘other

people significant to the care’ of a child

As discussed previously, the Family Law Act

acknowledges that children are frequently cared for by a range of ‘other

people significant to the care’ of a child. Those people other than the

two (or one) birth parents or adoptive parents can seek a parenting order from

the Family Court of Australia if they wish to formalise their parenting

role.[37]

Lesbian co-mothers and gay co-fathers are

amongst those ‘others’ under the current family law regime. They can

obtain a parenting order in respect of their child, but a person with a

parenting order is not always entitled to the same financial and work-related

benefits as a legal (birth) parent. This may compromise the best interests of a

child born to a lesbian or gay couple.

Parenting orders are discussed further in

section 5.3.4 below.

5.3 How

are same-sex families treated under federal financial laws?

The application of federal financial and work-related

laws to same-sex families is very uncertain.

As suggested in the previous section of this

chapter, the legal status of the various people involved in raising a child in a

same-sex family is unclear. On top of this, there is inconsistency in the way a

parent-child relationship is described within and between federal financial and

work-related laws. And it is unclear how each of those definitions might apply

to the various people involved in looking after a child – especially a

lesbian co-mother, gay co-father or other social parents.

Some federal laws limit financial and

work-related entitlements to the legal parents (or birth parents) of a child.

Since the lesbian co-mother or gay co-father of a child is generally not

considered a legal parent under family law, those laws will generally put the

child of a same-sex couple at a disadvantage. This is because the lesbian

co-mother or gay-co father cannot access the benefits available to the

opposite-sex birth parents – despite being the effective parents of the

child since birth.

On the other hand, there are

some laws which extend financial and work-related benefits to people who are

legally responsible for a child, or to people who financially support a child.

Those laws potentially include a lesbian co-mother or gay co-father –

particularly if they have obtained a parenting order from the Family Court.

The Inquiry’s concern is that the best

interests of a child are protected – irrespective of whether they are

being raised by opposite-sex or same-sex parents. Senator Ruth Webber put it

like this:

... it is completely absurd and unreasonable to argue for

the best interests of children while at the same time promoting laws that

discriminate against the children of same-sex parents. If benefits to couples

are designed to promote the interests of children, then how can one possibly

justify withholding those benefits from some children for no other reason than

that their parents are both of the same gender?

It is most probable that the children of same-sex couples

are harmed by the discrimination that same-sex couples and their families face.

I do not find the argument that withholding rights from same-sex couples is in

the interests of children very convincing.

Same-sex couples have continued to raise children in the

current environment – demonstrating that current discrimination does

nothing to “discourage” such behaviour. We are not preventing

same-sex couples from raising children with current discriminatory practices

– and nor should we – but we are making the lives of their

children more

difficult.[38]

The

lack of clarity in federal law in itself puts the best interests of children

raised in same-sex families at risk. It also causes distress to same-sex couples

who are trying to arrange their financial affairs to best care for their

children:

For me, this is not about our rights as parents, but our

child’s rights to have her family validated and accepted by her own

country. It’s about her right to full legal protection in the case of the

death of either of her parents. It is her right to be included on a Medicare

card which lists every member of her family. It is blatantly wrong to deny

children this protection because there are still so many in the community who

neither approve of nor understand the sexuality of their parents. Our sexuality

is not, or should not be the issue, it is all about our children who are

Australian citizens, born of Australian citizens, and deserve every protection

that is available to Australian children born to any other

family.[39]

The

following sections try and make some sense of how federal financial and

work-related laws might apply to same-sex families and what needs to change to

ensure greater equality in financial assistance for the children raised in those

families.

5.3.1 Summary

of definitions used in federal laws

The following text selects a representative sample of

the various definitions describing a parent-child relationship in federal

financial and work-related laws and seeks to determine whether, or when, lesbian

and gay parents may qualify for the relevant entitlements.

(a) Parent-child

relationships are described by four types of definitions

The various legislative definitions can be categorised

into four broad groups:

  • laws which do not define the relevant parent-child

    relationship

  • laws defining a child to include an adopted, ex-nuptial

    or step-child

  • laws defining a child to include a person for whom an

    adult has legal responsibility or custody and care

  • laws including a child who is wholly or substantially

    dependent on an adult or who stands in the position of a

    parent.

(b) Caveats

in using these groups of definitions

In reading the following text it is important to keep

in mind the following caveats.

Firstly,

sometimes laws which determine financial and work-related entitlements use terms

other than ‘child’, including ‘dependant’ or

‘dependent child’. However, the following text uses the term

‘child’ to cover these various

terms.

Secondly, these categories do not

represent a comprehensive list of all the different definitions of

‘child’ discussed throughout this report. Rather, they are a sample

of the general groups of definitions used. The specific definitions are

discussed in the relevant topic

chapters.

Thirdly, sometimes one piece of

legislation will use different definitions in different parts of the act. The

specific topic chapters provide a full explanation of the impact of the

different definitions on financial and work-related entitlements.

Fourthly, this text should be used to assist

in the interpretation of the definitions discussed in other chapters. However,

these interpretations are not definitive and may vary in the context of the

specific legislation.

Finally, this text tries

to provide guidance in an area of law which is inherently uncertain. There may

well be legitimate interpretations which are different to those discussed in

this chapter.

Ultimately, the Inquiry’s

concern is that the application of these definitions to the children of a

same-sex couple is inherently, and unnecessarily, unclear. This lack of clarity

puts the best interests of the child at risk and threatens to discriminate

against children and their parents. Thus there need to be amendments to the law

to provide equality and clarity.

5.3.2 Laws

which do not define the relevant parent-child relationship

Some federal legislation conferring financial and

work-related entitlements does not specifically define who qualifies as a

person’s child. Other legislation assumes the meaning of

‘mother’, ‘father’, ‘daughter’,

‘son’.

For example, the Life

Insurance Act 1995 (Cth) provides that, under certain circumstances, a life

insurance company can pay out a policy to an insured person’s child

without going through probate.[40] However, the legislation does not define who qualifies as the person’s

child.

In another example, the definition of

‘dependant’ in the Safety, Rehabilitation and Compensation Act

1988 (Cth) includes terms such as ‘father’,

‘mother’, ‘son’ and

‘daughter’.[41] These

terms are not defined in the legislation.

In

the Inquiry’s view, where legislation does not define terms relating to a

parent-child relationship, it is likely that the birth certificate will be

determinative of who qualifies for the entitlements. This is because the Family Law Act presumes that a person who is noted as a parent on a birth

register is the legal parent of that

child.[42]

These

terms would also include an adopted

child.[43]

If

this interpretation is correct, then the following children may (or may not)

qualify for benefits under laws which do not define a parent-child

relationship:

  • the child of a birth mother or birth father (or

    the birth parents themselves) may qualify for the benefits

  • the child of a lesbian co-mother (or the

    co-mother herself) is unlikely to qualify in the absence of adoption (unless the

    child is an ART child; the child has a birth certificate from WA, NT or ACT; and

    that birth certificate is recognised under federal

    law)[44]

  • the child of a gay co-father (or the co-father

    himself) will not qualify in the absence of adoption

  • an adopted child may qualify.

5.3.3 Laws

including an adopted, ex-nuptial or step-child

Some laws define a person’s child or dependant

to ‘include an adopted child, a step-child or an ex-nuptial child

of that person’.[45]

In the Inquiry’s view, these definitions assume that a ‘child’ includes the child of his or her birth

parents, as described on a birth certificate. It also explicitly extends the

scope of the definition to include an ‘adopted’ child,

‘ex-nuptial’ child and ‘step-child’.

The discussion in section 5.2 above notes that

a child of a lesbian co-mother or gay co-father cannot be a

‘step-child’ because a subsequent partner must marry the birth

parent to become a step-parent. It is also highly unlikely that a child will be

successfully adopted by a lesbian co-mother (or couple) or gay co-father (or

couple).

It further appears that a child of a lesbian co-mother or

gay co-father cannot be an ex-nuptial child. Neither the Family Law Act nor the

federal legislation conferring federal and work-related benefits on parents

defines who qualifies as an ‘ex-nuptial child’. Theoretically it is

possible that this term could apply to the child of any couple who is not

married – including a same-sex couple. However, the Inquiry does not

believe that the term will be interpreted in this way, given the general

non-recognition of same-sex couples under federal laws.

If the Inquiry’s interpretation of this type

of definition is correct, then the following children may (or may not) qualify

for benefits under laws using this definition:

  • the child of a birth mother or birth father (or

    the birth parents themselves) in a same-sex or opposite-sex couple may

    qualify

  • the child of a lesbian co-mother (or the

    co-mother herself) is unlikely to qualify in the absence of adoption (unless the

    child is an ART child; the child has a birth certificate from WA, NT or ACT; and

    that birth certificate is recognised under federal

    law)[46]

  • the child of a gay co-father (or the co-father

    himself) is unlikely to qualify in the absence of adoption

  • the step-child of a person who has married the

    birth mother or birth father (opposite-sex only) may qualify

  • an adopted child may qualify.

5.3.4 Laws

including the child of an adult who is ‘legally

responsible’

Several laws give financial and work-related

entitlements to adults who are legally responsible for a child.

These laws will automatically include the

people noted as parents on a birth certificate because they are presumed to be

the legal parents. But they also have the scope to include the child of a

lesbian co-mother or gay co-father.

As

discussed below, it is likely that a parenting order will be proof of

‘legal responsibility’ or ‘custody and care’ under the

different pieces of legislation. However, the legislation itself does not

explicitly recognise parenting orders and there does not appear to be specific

case law to support the view that a gay co-father or lesbian co-mother with a

parenting order will necessarily qualify under the relevant legislative

definitions.

In the Inquiry’s view the

children who may qualify for benefits under laws using this definition

include:

  • the child of a birth mother or birth father (or

    the birth parents themselves) in a same-sex or opposite-sex couple may

    qualify

  • the child of a lesbian co-mother or gay

    co-father with a parenting order (or the co-parents themselves) may

    qualify

  • the step-child of a person who has married the

    birth mother or birth father (opposite-sex only) may qualify

  • an adopted child may

    qualify.

However, greater clarity as

to the status of a parenting order in favour of a gay co-father and lesbian

co-mother would be of great assistance to those parents.

(a) A

lesbian co-mother or gay co-father can probably assert legal responsibility

through a parenting order

In the Inquiry’s view, where a person has a

parenting order setting out that person’s legal responsibility for a

child, then that child is likely to qualify for the entitlements available under

these laws. This is because parenting orders cover issues like where and with

whom a child should live, contact between a parent and child, financial

maintenance of a child, parental responsibility over a child and any other

aspect of the care, welfare or development of a

child.[47]

Any person with an interest in the

‘care, welfare and development’ of a child can approach the federal

Family Court for a court order clarifying that person’s parental

responsibilities – a ‘parenting

order’.[48] And the federal

Family Court can make a parenting order in favour of any person it thinks is

proper, irrespective of gender, biological or legal

relationships.[49]

The Inquiry heard from several lesbian

co-mothers and gay co-fathers who have been awarded parenting orders in their

favour.

(b) The

benefits of parenting orders

The main benefit of a parenting order for the purposes

of this Inquiry is that it should be sufficient evidence that an adult will be

‘legally responsible’ for the child for the purposes of accessing

certain financial and work-related

entitlements.[50]

Many

of the people who made submissions or gave evidence to the Inquiry, spoke of the

comfort they found in having a parenting order from the Family Court of

Australia.

Some of the important aspects of

parenting orders for gay and lesbian couples include:

  • Parenting orders are made with the best interests

    of the child as a primary

    consideration.[51] Thus the focus is

    on the impact on the child rather than the gender of the carers.

  • Parenting orders are a flexible and practical

    mechanism for recognising the intended parenting role of both members of a

    same-sex relationship and any additional adults involved in the conception and

    care of a child.[52]

  • Parenting orders provide official evidence of the

    legal relationship between the lesbian co-mother, gay co-father and child so

    that the co-mother can prove her right to exercise parental authority and

    consent (for example, decisions about schooling, medical treatment

    etc).[53]

(c) The

limitations of parenting orders

Many people told the Inquiry that the process of

obtaining a parenting order can be very onerous and prohibitively expensive.

Some pointed out that it was unfair to be forced through a bureaucratic legal

process just to prove what is already assumed for an opposite-sex couple –

that the parents at birth are the legal parents.

Janet Jukes describes her frustration that a

parenting order does not make her a legal mother:

Firstly, it is important to note that because we each

conceived one of our daughters, we are not considered the legal parents of both

our children. In Victoria we are not allowed to adopt our children to remedy

this fact. In order to minimise the discrimination that this causes we have

obtained court orders that give residency and contact responsibilities to us as

a couple and limits the donor’s responsibilities. Although this remedy has

been invaluable in dealing with the hospital system, childcare and other service

systems, it is inadequate because it does not and cannot make Hannah my daughter

nor Ava Marion’s daughter in law. Further, a court order is only

relevant while the girls are minors, once Hannah is 18 years old she will have

no legal relationship to me nor Ava to Marion. Although our daughters have the

same father, they are not considered sisters by law and their birth

certificates do not recognise the existence of each

other.[54]

A couple in Townsville talked about the

considerable time, expense and intrusion involved in getting a court order

recognising what they already knew to be true – that they are their

son’s parents. They also highlight that opposite-sex couples need not go

through any of this:

We have recently undergone lengthy and expensive legal

proceedings (incl. the hiring of a solicitor) to have parenting orders granted

via the Family Law Court. Although we are very proud of this successful

application, the order simply tells us what we know to be true – that our

son is loved and cared for by his two mums, that he resides with us in our home,

that we are both economically responsible for him, that we share every single

decision about his care, welfare and development. To secure this order we had to

lay bare information about how [name removed] and I met, our living arrangement,

our financial position, our professions and working hours, how we came to have a

son, how we decided who was going to be the birth mother, how we look after him

given our working commitments, our plans for our son’s education, not to

mention the materials our house is constructed from, - and after all of that our

son ended up with less legal security than his counterparts with heterosexual

parents. At the end of this process [name removed] and I have been granted a

watered down version of what heterosexual couples acquire

automatically.[55]

A

lesbian woman at the Sydney Forum spoke about the barriers she and her former

partner faced in obtaining a parenting order in relation to their

child:

I am the biological mother of a daughter and [when] my

then partner and I decided to have a child we made that decision together. My

former partner is quite clearly in every sensible person’s eyes the mother

of our daughter. When our relationship broke up, when our daughter was three, we

wanted to formalise and legalise, so to speak, the relationship between her and

our daughter and it proved to be fairly difficult.

It’s probably only due to the fact that I’m a

lawyer and I’m stroppy and obnoxious and I don’t like being told no

for an answer that we proceeded to do it. And also the fact that the break up

was fairly amicable. We were still speaking and we could agree on a way to deal

with custody arrangements. I don’t know how couples would do it if they

hated each other or weren’t highly educated and very determined.

We went before the Family Court ... We both had to file

affidavits attesting to the nature of our relationship, the nature of the

relationship between us and our daughter, and how things worked. We came before

a magistrate who asked us what I consider fairly offensive and inappropriate

questions. I ended up, in effect, being my former partner’s advocate. It

wasn’t her sphere and she didn’t know how to respond to these

ridiculous questions. The magistrate said things to me like well you’ve

had one relationship and now that’s broken up and then you’ll have

another relationship – basically trying to say that there is no

relationship between my former partner and our child. There is and there was. My

daughter is three years old and all she knew was that she had two mothers.

...

It took a lot of persuasion and I’m glad to say that

in the judgement he almost apologised. He heard our submissions and he was

impressed by the fact of the strength of feelings in the genuiness of the

relationship between me and my daughter and my partner and her daughter. We now

have Family Court orders that say that both of us are her legal guardians and we

both have a say in her upbringing. All this would have been completely

unnecessary of course had my partner had been formally recognised as my

daughter’s mother when she was

born.[56]

Other

limitations of parenting orders include:

  • Parenting orders do not confer any automatic

    parental status for the purposes of federal laws other than the Family Law

    Act.[57]

  • Parenting orders can be varied or challenged at

    any time.[58]

  • Legal costs of applying for a parenting order may

    be in the range of $3000 to

    $6000.[59]

  • Parenting orders expire once the child turns 18

    years old.[60]

  • Parenting orders do not give the universal or

    durable status accorded by

    adoption.[61]

  • The primary purpose of parenting orders is to address

    disputes between separating parents, rather than affirm the intention of parents

    who are in a couple.

5.3.5 Laws

including a child who is wholly or substantially dependent on a

person

Some laws take a much broader approach to the

circumstances under which an adult may be entitled to financial and work-related

benefits relating to a child.

Some definitions

focus on whether a child is ‘wholly or substantially

dependent’ on a person. Others talk about a child being wholly or

substantially dependent on a person who ‘stands in the position of a

parent’.

These laws will generally

include the legal parents of a child automatically. But they also have the scope

to include a child who is financially dependent on a lesbian co-mother or gay

co-father.

A parenting order may assist in

establishing that a child is wholly or substantially dependent or that a person

is ‘standing in the position of a parent’. But a parenting order may

not be necessary where there is other evidence of financial dependence.

In the Inquiry’s view the children who may qualify for benefits under laws using this definition

include:

  • the child of a birth mother or birth father (or

    the birth parents themselves) in a same-sex or opposite-sex couple

  • the child of a lesbian co-mother or gay

    co-father with a parenting order (or the co-parents themselves)

  • the child of a lesbian co-mother or gay

    co-father (or the co-parents themselves) where there is evidence of

    substantial financial dependence

  • the step-child of a person who has married the

    birth mother or birth father (opposite-sex only)

  • an adopted

    child.

Some of the laws using this

broader concept tend to use the term ‘dependent child’,

‘dependant’ or other terms, rather than ‘child’ on its

own. And some of the laws set out what will constitute being ‘wholly or

substantially dependent’.

(a) Dependence

can be ‘liability to maintain a child’

As discussed in more detail in Chapter 10 on

Veterans’ Entitlements, the Veterans’ Entitlements Act 1986 (Cth) (Veterans’ Entitlements Act) defines the ‘child of

a veteran’ to include a child of whom the veteran is a mother or father,

an adopted child, and:

...any other child who is, or was immediately before the

death of the veteran, wholly or substantially dependent on the

veteran.[62] (emphasis

added)

The Veterans’ Entitlements Act

clarifies that if a veteran is ‘liable to maintain a child,

the child shall be deemed to be wholly or substantially dependent on that veteran’.[63]

A definition like this seems to suggest that

evidence of the ‘liability to maintain a child’ will be sufficient

to qualify for an entitlement. A parenting order will likely assist in proving

that liability. However, it would be helpful if the legislation were clear on

this matter.

(b) Dependence

can be ‘living with a child’

Some workers’ compensation laws state that a

person living with the employee at the time of death will be ‘wholly

dependent’ on that person.[64] There is no suggestion of a pre-existing legal relationship, just that the

person be living with the deceased employee.

In definitions such as these there may be no

need for a parenting order. However, it seems that parenting orders have

‘been used on numerous occasions to confirm that the child legally resides

with the co-mother as well as confirming her authority to make medical and

educational decisions about the

child’.[65]

5.4 How

are same-sex families treated under state and territory financial laws?

As discussed in Chapter 4 on Recognising

Relationships, all of the states and territories have redefined the concept of

de facto relationships so that same-sex and opposite-sex de facto couples can

now access the same financial and work-related

entitlements.

However, those reforms did not

address the question of parental relationships between a lesbian co-mother or

gay co-father and child, other than in WA, ACT and NT. And even in those states,

the issue is only resolved with respect to lesbian couples conceiving a child

through ART.

The Inquiry has not had sufficient

resources to examine all the definitions of ‘child’,

‘dependant’, ‘dependent child’ and so on in all state

and territory laws.

Where the Inquiry has

identified problems they have been noted elsewhere in this report. However, the

Inquiry urges all state and territory governments to audit laws to remove any

existing discrimination in the treatment of children of same-sex couples, as

described in the previous sections of this report.

5.5 How

should federal law change to protect the best interests of all

children?

Protecting the best interests of the child is a

fundamental principle of international human rights law. So is the principle of

non-discrimination.

This means that two

members of a same-sex couple taking care of children should have the same access

to financial and work-related entitlements as two members of an opposite-sex

couple in the same situation. The right of same-sex families to those

entitlements, and the avenues for obtaining access to those entitlements, should

also be clear.

This chapter has identified four

different categories of definitions attempting to define who will qualify as the

‘child’ of a person for the purposes of accessing financial and

work-related entitlements.

Those four

categories are:

  1. laws which do not define the relevant parent-child

    relationship

  2. laws including an adoptive, ex-nuptial and

    step-child

  3. laws including a child for whom an adult has specific

    legal responsibility or where the child is in ‘the custody or care’

    of an adult

  4. laws including a child who is wholly or substantially

    dependent on an adult (including an adult standing in the position of a

    parent).

None of the legislation using

this range of definitions provide clear guidance on how they apply to the

lesbian co-mother or gay co-father in a family. However, it does appear that a

same-sex family is less likely to qualify for entitlements than an opposite-sex

family because of the way that family law recognises the legal status of lesbian

and gay co-parents.

5.5.1 Amended

laws must recognise the reality of same-sex parenting

One problem with the various definitions of

‘child’ in federal financial and work-related laws lies in the

variation between and within the laws.

Sometimes there are good reasons for the

variations in the definitions. In some cases the entitlements are only intended

to go to a narrow group of people defined by reference to the child and parents

at birth (for example parental leave entitlements). In other cases the

entitlements are intended to extend to those people who are, in a practical

sense, financially supporting a child even if they are not the birth parents.

However, none of the definitions recognise a

child being raised by lesbian and gay co-parents from birth in the same way as

they recognise a child being raised by opposite-sex parents from birth. This is

primarily because the definitions rely on federal family laws and state adoption

laws which do not leave room to recognise legal parental status between a child

and his or her lesbian co-mother or gay

co-father(s).

The result is that same-sex

families are excluded from a range of federally funded entitlements and benefits

which are available to opposite-sex families. Denying access to benefits

intended to help parents support their children leaves the children in a

same-sex family worse off than other

children.

Thus, the purpose of amending laws is

to ensure equality for the children being raised in same-sex families, and

clarity for the parents seeking to access entitlements to support their children

in the best way they can.

5.5.2 Seven

recommendations to ensure equality for the children of same-sex

parents

In the Inquiry’s view the following steps should

be taken to better ensure equal protection for the children of same-sex

parents:

  1. Federal laws without a definition of

    ‘child’ should include a definition which recognises the children of

    a birth mother, birth father, lesbian co-mother or gay

    co-father.

  2. Federal laws should ensure that a lesbian co-mother of

    an ART child can access the same financial and work-related entitlements

    available to a birth mother and birth father (a legal parent).

This could be achieved by

amending:

  • the Family Law Act 1975 (Cth) (Family Law Act) to

    include a parenting presumption in favour of the lesbian co-mother of an ART

    child and ensuring that the definition of ‘child’ in any relevant

    legislation recognises the parenting presumptions in the Family Law Act;

    or

  • the Acts Interpretation Act 1901 (Cth) (Acts

    Interpretation Act) such that any references to a person’s

    ‘child’ in federal legislation includes the ART child of a lesbian

    co-mother.

It could also be achieved

if:

  • all states enacted parenting presumptions in favour of a

    lesbian co-mother of an ART child (following the models in WA, ACT and NT);

    and

  • federal law clearly recognised those presumptions and the

    birth certificates flowing from those

    presumptions.

While parenting presumptions

are appropriate for the ART child of a lesbian couple, broader adoption laws are

the better solution for a gay couple having an ART child (as set out in the

following recommendations

4–5).[66]

  1. Federal financial and work-related laws should include

    a definition of ‘step-child’ which recognises a child under the care

    of a ‘de facto partner’ of a birth mother or birth

    father.

    Chapter 4 on Recognising

    Relationships suggests an appropriate definition of ‘de facto

    partner’.

    Amending laws in this way would generally recognise the

    child of a lesbian co-mother or gay co-father as a step-child. It would also

    include a child under the care of a subsequent de facto partner in an

    opposite-sex and same-sex couple. (Currently a step-child can only be a child

    under the care of a subsequent partner who marries the birth parent).

  2. ‘Step-parent adoption’ laws should more

    readily consider adoption by a lesbian co-mother or gay

    co-father.

    This will require

    amendments to remove the prohibition on same-sex step-parent adoption in all

    state and territory laws other than in WA, the ACT and Tasmania. It may also

    require reconsideration of the general presumption against step-parent adoption,

    in the event of gay and lesbian co-parenting arrangements. The Victorian Law

    Reform Commission is due to publish a report on this issue during 2007.

  3. Gay and lesbian couples should have equal rights to

    apply for adoption of an unrelated

    child.

    This will require amendments to

    adoption laws in all states and territories other than in WA and the ACT.

    Further, the federal government should not introduce legislation limiting the

    possibility of overseas adoptions by gay and lesbian couples.

  4. Where access to financial or work-related benefits is

    intended to extend beyond the legal parents, federal laws should explicitly

    recognise the eligibility of a person who has a parenting order from the Family

    Court of Australia.

    This could be

    achieved by amending:

  • the relevant federal legislation to define a person who

    is ‘legally responsible’, has ‘custody and care’, is in

    the ‘position of a parent’ (and other similar terms) to include a person who has been granted a parenting order from the Family

    Court of Australia; or

  • the Acts Interpretation Act such that any reference to a

    person who is ‘legally responsible’, has ‘custody and

    care’, is in the ‘position of a parent’ (or other similar

    terms) includes a person who has been granted a parenting order from the

    Family Court of Australia.

  1. There should be a public information and education

    campaign to ensure that gay and lesbian families are aware of their rights and

    entitlements under federal financial and work-related

    laws.

    In particular, same-sex parents

    should be:

  • informed about the role of parenting orders in asserting

    legal rights; and

  • assisted through the process of obtaining such an order.

Endnotes

[1] Australian Bureau of Statistics, Year Book Australia, ‘Same-Sex

Couple Families’, p142 (2005). See also J Millbank, ‘Recognition of

Lesbian and Gay Families in Australian Law – Part Two: Children’, Federal Law Review, vol 34, no 2, 2006, p206, referencing M Pitts et al,

‘Private Lives: A Report on the Health and Wellbeing of GLBTI

Australians’ (2006); Victorian Law Reform Commission, Assisted

Reproductive Technology and Adoption Position Paper Two: Parentage, (July

2005), para

3.1.
[2] Assisted Reproductive Technology (ART) includes in vitro fertilisation (IVF),

clinically-assisted donor insemination and

self-insemination.
[3] Felicity Martin and Sarah Lowe, Melbourne Hearing, 26 October

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

60B.
[5] Family Law Act 1975 (Cth), s

60B(2).
[6] Family Law Act 1975 (Cth), s

69R.
[7] Family Law Act 1975 (Cth), s

4.
[8] See for example, Births, Deaths and Marriages Act 1995 (NSW), pt 3, divs

1, 2,

4.
[9] The term ‘social parent’ is adopted from the Victorian Law Reform

Commission, Assisted Reproduction and Adoption Position Paper Two:

Parentage, (July

2005).
[10] Family Law Act 1975 (Cth), ss 64B -

64C.
[11] Family Law Act 1975 (Cth), s 60H. A sperm donor is presumed not to be a

parent of the child: Status of Children Act 1996 (NSW), s 14(2); Parentage Act 2004 (ACT), s 11(5); Status of Children Act 1978 (Qld), s 18(1); Status of Children Act 1974 (Vic), s 10F(1); Artificial Conception Act 1985 (WA), s 7(2); Status of Children Act

1978 (NT), s 5F(1); Status of Children Act 1974 (Tas), s 10C(2); Family Relationships Act 1975 (SA), s 10E(2). See also J Millbank,

‘Recognition of Lesbian and Gay Families in Australian Law – Part

Two: Children’, Federal Law Review, vol 34, no 2, 2006, p233.
[12] Family Law Act 1975 (Cth), s

60H.
[13] Artificial Conception Act 1985 (WA), s 6A; Status of Children Act

1979 (NT), s 5DA; Parentage Act 2004 (ACT), s 8.
[14] See J Millbank, ‘Recognition of Lesbian and Gay Families in Australian Law

– Part Two: Children’, Federal Law Review, vol 34, no 2,

2006, p253.
[15] Ruth Corris and Michelle Murray, Submission 56. See also Speaker, Adelaide

Forum, 28 August

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

69R.
[17] Family Law Act 1975 (Cth), s 60H; Family Law Regulations 1984 (Cth), regs

12C, 12CA, schs 6 - 7. See also J Millbank, ‘Recognition of Lesbian and

Gay Families in Australian Law – Part Two: Children’, Federal Law

Review, vol 34, no 2, 2006,

pp254-255.
[18] A recent study suggested that among 43 lesbians trying to conceive, only two

percent used intercourse: see J Millbank, ‘Recognition of Lesbian and Gay

Families in Australian Law – Part Two: Children’, Federal Law

Review, vol 34, no 2, 2006, p207, referencing McNair et al, ‘Lesbian

Parenting: Issues, Strengths and Challenges’ Family Matters, vol

63, 2002, p40.
[19] The federal Family Court found that a man was the legal parent of a child

conceived through intercourse, even though the lesbian mother, the co-mother and

the man had an express agreement that the man would have no legal rights or

liabilities with respect to the child: ND v BM [2003] FamCA 469. See also

J Millbank, ‘Recognition of Lesbian and Gay Families in Australian Law

– Part Two: Children’, Federal Law Review, vol 34, no 2,

2006,

p207.
[20] Family Law Act 1975 (Cth), s 60H; Artificial Conception Act 1985 (WA), ss 3(1)-(2), 6; Status of Children Act 1979 (NT), ss 5A(2), 5D; Parentage Act 2004 (ACT), s

11(4).
[21] See for example Parentage Act 2004 (ACT), ss 41, 44; Surrogate

Parenthood Act 1988 (Qld), s 3; Surrogacy Contracts Act 1993 (Tas),

ss 4-5, 7; Family Relationships Act 1975 (SA), ss 10G-10H; Infertility

Treatment Act 1995 (Vic), ss 59, 61. See also J Millbank, ‘Recognition

of Lesbian and Gay Families in Australian Law – Part Two: Children’,

Federal Law Review, vol 34, no 2, 2006,

pp212-214.
[22] J Millbank, ‘Recognition of Lesbian and Gay Families in Australian Law

– Part Two: Children’, Federal Law Review, vol 34, no 2,

2006,

p217.
[23] Family Law Act 1975 (Cth),s

4.
[24] J Millbank, ‘Recognition of Lesbian and Gay Families in Australian Law

– Part Two: Children, Federal Law Review, vol 34, no 2, 2006, p248:

In footnote 245, Millbank notes that ‘the Northern Territory introduced a

change to redefine the child born to one party in a de facto relationship as a

‘step-child’ as a presumptive status in the same way that the child

of a party to a legal marriage would be: see Interpretation Act 1978 (NT), s

19A(4).
[25] Family Law Act 1975 (Cth), s

4.
[26] Adoption Act 1994 (WA), ss 38-39; Adoption Act 1993 (ACT), s

18(1). In Tasmania, a same-sex partner can apply to adopt a child if that child

is related to his or her partner: Adoption Act 1988 (Tas), s 20(1)-(2A).

See section

5.2.4(b).
[27] See J Millbank, ‘Recognition of Lesbian and Gay Families in Australian Law

– Part Two: Children’, Federal Law Review, vol 34, no 2,

2006,

pp208-212.
[28] In 2005–06 there were 576 adoptions in Australia: 73% were inter-country,

10% were local and 16% were ‘known’ child adoptions: Australian

Institute of Health and Welfare (AIHW), ‘Adoptions Australia

2005-06’, Child Welfare Series, no 39, 2006,

pvii.
[29] Adoption Act 1984 (Vic), s 11(5)-(6); Adoption Act 2000 (NSW), s

30; Adoption of Children Act 1994 (NT), s 15; Adoption of Children Act

1964 (Qld), s 12; Adoption Act 1988 (SA), s 12. See also, J Millbank,

‘Recognition of Lesbian and Gay Families in Australian Law – Part

Two: Children’, Federal Law Review, vol 34, no 2, 2006, p248. See

also Victorian Law Reform Commission, Assisted Reproduction and

Adoption Position Paper Two: Parentage, (July 2005). At page 51, the

Victorian Law Reform Commission recommends that ‘the Adoption Act is

amended to allow the court to make an adoption order in favour of a same-sex

couple’.
[30] Adoption Act 1993 (ACT), s 18(1)-(2); Adoption Act 1994 (WA), s

55; Adoption Act 1988 (Tas), s 20(1),(2A). See also J Millbank,

‘Recognition of Lesbian and Gay Families in Australian Law – Part

Two: Children’, Federal Law Review, vol 34, no 2, 2006,

p249.
[31] See for example, Adoption Act 1993 (ACT), s

18(2).
[32] See Adoption Act 1994 (WA), s 68(1)(fa); Adoption Act 1993 (ACT),

s 18(2); Adoption Act 2000 (NSW), s 30; Adoption of Children Act

1964 (Qld), s 12(3); Adoption Act 1984 (Vic), s 11(5), (6); Adoption of Children Act 1994 (NT), s 15; Adoption Act 1988 (SA),

s 12(3)-(4). The Tasmanian provisions for registered significant relationships

do not appear to be subject to this qualification: Adoption Act 1988 (Tas), s 20. See also J Millbank, ‘Recognition of Lesbian and Gay Families

in Australian Law – Part Two: Children’, Federal Law Review,

vol 34, no 2, 2006, p249 and footnote 247.
[33] Victorian Law Reform Commission, Assisted Reproductive

Technology and Adoption Position Paper Two: Parentage, (July 2005), paras

3.34-3.39. The VLRC final report is due for release in

2007.
[34] Dr James G Dowty, Submission

99.
[35] Frank Gomez, Submission

216.
[36] Marcus Blease, Submission

111.
[37] Family Law Act 1975 (Cth), s

64B.
[38] Senator Ruth Webber, Submission

280.
[39] Dr Kate Stewart, Submission

82.
[40] Life Insurance Act 1995 (Cth), ss

211-212.
[41] Safety, Rehabilitation and Compensation Act 1988 (Cth), s

4.
[42] Family Law Act 1975 (Cth), s

69R.
[43] Family Law Act 1975 (Cth), s

4.
[44] See further, the discussion in section 5.2

above.
[45] Income Tax Assessment Act 1936 (Cth), s 6(1); Income Tax Assessment

Act 1997 (Cth), s 995.1; Fringe Benefits Assessment Act 1986 (Cth), s

136(1); Superannuation Industry (Supervision) Act 1993 (Cth), s 10; Parliamentary Contributory Superannuation Act 1948 (Cth), s

19AA(5).
[46] See further, the discussion in section 5.2

above.
[47] Family Law Act 1975 (Cth), s 64B(2). The Family Law Act defines

‘parental responsibility’ to mean ‘all the duties, powers,

responsibilities and authority which, by law, parents have in relation to

children’: Family Law Act 1975 (Cth), s

61B.
[48] Family Law Act 1975 (Cth), s 65C. See J Millbank, ‘Recognition of

Lesbian and Gay Families in Australian Law – Part Two: Children’, Federal Law Review, vol 34, no 2, 2006,

p245.
[49] Family Law Act 1975 (Cth), s

65D(1).
[50] For a further discussion of the legal implications of parenting orders see T

Carney, ‘Social Security Law and Policy’, Federation Press, 2006,

p178.
[51] Family Law Act 1975 (Cth), s 60CA.
[52] Family Law Act 1975 (Cth), s 64B(2)(d). A parenting order may be made in

favour of a parent or any other person. More than two people can have a

parenting

order.
[53] See, for example, Name Withheld, Submission

299.
[54] Janet Jukes, Submission

276.
[55] Speaker, Townsville Forum, 12 October

2006.
[56] Speaker, Sydney Forum, 26 July

2006.
[57] J Millbank, ‘Recognition of Lesbian and Gay Families in Australian Law

– Part Two: Children’, Federal Law Review, vol 34, no 2,

2006,

p248.
[58] Family Law Act 1975 (Cth), s

65D(2).
[59] J Millbank, 'Areas of Federal Law that Exclude Same-Sex Couples and their

Children', Inquiry Research Paper, September 2006, http://www.humanrights.gov.au/samesex/index.html. Some state registries are introducing simplified procedures which may allow

couples to apply for a parenting order without the assistance of a solicitor and

therefore save

costs.
[60] Family Law Act 1975 (Cth), s

65H.
[61] J Millbank, ‘Recognition of Lesbian and Gay Families in Australian Law

– Part Two: Children’, Federal Law Review, vol 34, no 2,

2006,

p248.
[62]