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Nappies is for consultation
Who is parenting and how
And baby makes three (or four, or five, or two)
How the laws affect our lives
Current recognition avenues
Recognition Options for the future
What we favour and why
We recommend
Nappies Consultation:
Expression of Interest
MAJOR REPORT - OCTOBER 2002 |
 
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And then… the brides changed nappies
Current recognition avenues
Adoption transfers all of the legal rights and responsibilities of a parent onto a person who is not the biological parent of a child. Adoption is not currently available to lesbian and gay couples in NSW. While a lesbian or gay man can adopt a child as a “single” person, a same sex couple cannot jointly adopt an unrelated child. Same sex couples where one partner has a biological child are also excluded from using adoption to extend recognition to the other partner.
Existing recognition options are very limited. They are confined to parenting orders under federal law, and a few limited instances of functional parent presumptions under state law. They are explained below.
Parenting orders
Under the Family Law Act (Cth) parenting orders can made regardless of the biological or legal relationship between the parties or between the parties and the child. A mother and co-mother can jointly apply for parenting orders by consent covering issues such as residence and contact as well as other specific issues. If there is no legal father, or he consents, this is a fairly simple process and it has 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.
Consent orders can also cover donor-dads. Such orders could set out what contact the donor-dad is to have with the child, or establish that residence is to be shared between the donor-dad and the mothers.
Pros
- a relatively simple process
- flexible coverage of issues so can be tailored to each family’s needs
- can cover more than two adults, so covers multi-parent families
- can be used by co-parents as well as step-parents
Cons
- it is not adoption. It only covers some areas and does not necessarily affect the definition of “parent” and “child” under other laws – eg does not affect inheritance
- only covers children up to the age of 18
- waiting time – it can’t really be used until the child is a few years old and a ‘status quo’ has been established
- requires proving to the court that your family form is in ‘the child’s best interests’ – for heterosexual families this is assumed
- like all opt-in mechanisms, it does not help families where parents
have not successfully completed this process. Even at its simplest it
requires money, access to lawyers and a lot of effort, including coming
out to a court.
Limited functional parent presumption
In a few areas of NSW law, such as worker’s compensation, a person who is living with a child and acts “in loco parentis” (or “in the place of a parent”) even though they are not a biological parent, has that relationship recognised for a specific purpose. So if a ‘functional parent’ were to die in a work-related injury, the child would be entitled to compensation even though they were not biologically or legally related.
Pros
- is presumptive, so can simply be used when needed, no need for opt-in process
- is flexible, can cover co-parents or step-parents
- can change over time
- can cover multi-parent families
Cons
- very limited coverage, as only applies to a small number of laws
- mostly only covers relationships where the parent and child live together
- may lead to difficult problems of proof if opposed
Clearly these two current avenues do not offer adequate coverage to the range of lesbian and gay families in our community.
In the following section we raise general issues for recognition (who? how?) and then outline all of the available possibilities before listing which ones we support and why.