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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
Recognition Options for the future
Two important issues running through reform possibilities are:
1. Who should be covered? Should we assume that the law will only cover two legal parents, or try to extend legal recognition to multi-parent families?
2. How should that coverage occur? Should it be based upon presumption based or opt-in.
Presumption based laws, such as our current relationship recognition laws, apply automatically after you have met certain criteria and you do not need to do anything to formalise your relationship. With many of these laws, you can opt-out if you wish. Opt-in recognition works on the basis that you must take steps to register a relationship or formalise it.
Who. Our general approach is that wherever possible the broadest range of our parenting relationships should be recognised.
Co-parents who raise a child with whom they have no biological relationship from birth are in the position of most immediate need, as they have no legal relationship with their child in almost every area. Co-parents should be recognised as the equal parents they really are, and we support the full legal recognition of co-parents as an urgent priority. It follows that co-parents should be liable for child support obligations.
Other people whose roles are more varied and are more likely to evolve with time, such as step-parents and donor-dads, should also have their relationships recognised. These relationships are more varied and need a greater variety of recognition options.
How. Where possible, we suggest extending existing legal regimes. We do this for simplicity and based on what we think is achievable. So, for example, we do not start by completely rewriting family law, but where current laws do not “fit” our families, we suggest new models.
Co-mothers are parenting from birth in partnership with mothers. We believe that legal recognition, like that for heterosexual couples who have children through donor insemination, should be presumptive from birth. This is a formal equality approach; simply extending existing laws to equally cover co-mothers who are similarly situated to male partners.
Co-fathers are not in the same situation as co-mothers because they are not having children with their partners through donor insemination – so current presumptive laws cannot be extended to co-fathers. We support recognition of co-fathers to the fullest extent possible, depending upon how the relationship has come about. For example, where the child is adopted, co-fathers should be recognised through the availability of joint adoption.
The range of other parent figures who come into children’s lives
later and whose roles may evolve with time require a more flexible range
of options that can reflect the differences in their relationships. Recognition
of these varied relationships therefore needs to be opt-in.
There are many different legal avenues that could be pursued to
obtain parenting recognition. Below we list a series of different options,
and note their advantages and disadvantages. At the conclusion of this
menu, we explain which avenues we support and why.
1. A deeming provision from birth
As noted earlier, NSW law deems the consenting male de-facto partner of a woman who has a baby by donor insemination to be a legal father for all legal purposes. Currently, this does not cover same sex couples, so babies born through DI in lesbian couples have only one parent. If this law were made gender-neutral, a consenting lesbian co-mother would be a full parent from birth across a wide range of laws. Western Australia introduced such a provision in 2002.
Pros
- covers all NSW laws at once
- may cover some federal law also (where the meaning of “parent” is anchored in NSW law)
- extremely simple
- presumptive rather than opt-in, it applies automatically from birth, so does not require money, lawyers etc
- a female partner can refuse consent and so opt-out –if she does not want to be a legal parent she can refuse to be listed on the birth certificate
- uses a simple “formal equality” approach, placing female partners in the same position as male partners in couples where children are born through DI
- is life-long, does not cease when the child turns 18
- if Western Australia can do it, so can we!
Cons
- currently such a law only covers children born after it has been introduced, so may not help all families with children already
- also does not cover children born through other means than DI
- does not cover most federal law (eg child support)
The major disadvantage of this reform option is that it does not cover everyone. This could be remedied by introducing other changes in combination with it – e.g. if children born before the law was introduced could be adopted by their co-parent.
Alternately, there could be an additional provision under this law for parents whose children were born before the changes came into effect to opt-in to coverage under the Act through a simple administrative process – such as changing the details on the birth certificate. This would have the same effect as adoption for co-mothers, but would be cheaper and easier to use.
2. Adoption
NSW adoption law prevents a lesbian or gay co-parent or step-parent formalising their relationship with a child they are raising with the biological parent.
Step-parent adoption
Step-parent adoption creates a legal relationship between the child and
the step-parent. Step-parent adoption provisions assume that there are
two biological/legal parents to start with. An order of adoption severs
the relationship of one biological parent and awards it to the step-parent.
Because of the effect on the parent whose relationship is severed, there
is a presumption in the law against such an order.
These provisions do not currently cover same sex relationships. If extended
to same sex couples, they could be used by lesbian and gay step-parents.
Pros
- covers all NSW laws
- may cover federal law also (where the meaning of parent is anchored in NSW law)
- can reflect changing family forms, after relationship breakdown
- has symbolic importance as family recognition
- uses a formal equality approach treating homosexual and heterosexual parent figures in the same way
- is life-long, does not cease when the child turns 18
Cons
- not a simple process
- is opt-in, so requires money, lawyers, effort. Will not cover the many people who do not use it
- is not flexible in that it only recognises two parents, and involves severing the relationship of the other biological parent (eg a former husband or wife)
- is unlikely to be approved where the other biological parent opposes it
- is really not appropriate when homosexual parent figures are not in the same situation as heterosexuals, i.e. they are in fact co-parents rather than step-parents (discussed below)
- may not cover all federal law (eg child support)
Co-parent adoption
Step-parent provisions are not adequate to deal with co-parent relationships. These two situations need to be dealt with differently as they very reflect different relationships and needs.
Where there is only one legal parent to begin with – e.g. two lesbian mothers who have had a child together through donor insemination – and the co-parent has been present in the child’s life since birth as an equal parent, they should not be treated as a step-parent because they are not, in fact a step-parent. Heterosexual co-parents from birth are already deemed to be parents for all legal purposes.
We support an additional adoption provision for co-parent adoption where there is either only one legal parent (or where there are two legal parents if there is consent from the parent who will have their relationship severed). This provision would have a presumption in favour of such an order.
Pros
- covers all NSW laws
- may cover federal law also (where the meaning of parent is anchored in NSW law)
- if there is a presumption in favour, it would be relatively simple to use
- has symbolic importance as family recognition
- is life-long, does not cease when the child turns 18
- could be used to extend recognition to children who had been born before reforms deeming co-mothers from birth came into force
Cons
- is opt-in, so it requires money, lawyers, effort and will not cover the many people who do not use it
- is not flexible in that it only recognises two parents and assumes that known donors will stay unrecognised (or will consent)
- may not cover all federal laws (eg child support)
3. Extended functional parent presumption
Such a change would presume that a “functional parent” was a legal parent for some or many areas of law. The definition of “functional parent” could be based upon living with the child and acting in place of a parent, or use definitions from existing NSW legislation, or another legal categories such as “dependency”. So, if a functional parent died, the child could use the specific laws that included this definition to claim inheritance or compensation.
Pros
- flexible – can be used to respond to some areas of law and not others if that is desired
- flexible – can cover co-parents or step-parents as and when needed
- presumption-based, so does not require money and lawyers to opt-in
- uses and extends legal categories that already exist
Cons
- may be slow and piecemeal with some laws being changed and others not, based on the government’s view of what is expedient rather than our needs
- may lead to inconsistency and uncertainty about who is covered and when
- would only cover NSW law and would not be reflected in any federal law
- depending upon definition, may be limited to children up to 18, or only to those who live with a parent figure
- may be hard to prove a relationship if there is opposition to a claim
4. Registrable Parenting Plans
Disputes about children may arise between mothers and co-mothers if their relationship breaks down; such disputes typically cover residence, contact, and child support. Disputes may also arise between mothers and donor-dads – these disputes are typically about contact.
As many lesbians are having children with gay donors, all members of these families are starting with some idea of how all the parties should occupy different parenting roles. Agreements may be spoken or written down. They may cover emotional issues as well as practical ones – eg what the parties will call each other and themselves to the child, who will have residence and primary care of the child, who will bear the costs of child-raising and so on. As neither co-mothers nor donor-dads have a legal relationship with the child, these agreements are very important in structuring everyone’s understanding of how the family will function, but they are not legally binding. They have no legal effect if a residence or contact dispute develops.
We do not propose that parenting plans between mothers or between mothers and donors be made binding for two important reasons.
The first reason is that research on lesbian and gay families suggests that as children grow up, agreements are often varied as relationships change – frequently a donor-dad’s contact with the child increases over time. A binding agreement is unable to accommodate future developments. So, for example, if a donor-dad had agreed to little or no contact, but over the next few years saw the child weekly, a dispute over contact could not be resolved by a parenting agreement which recorded the original view that he would not see the child.
Secondly, no parenting agreement of any kind can be binding on the Family Court. The Court must always make orders in the child’s best interests, and any agreement or prior order can always be overturned on this basis. It would be impossible to argue for binding agreements when they fly in the face of the Family Law system’s emphasis on the child’s best interests.
However, the Family Law Act does provide that the parents of a child can register a written agreement, known as a parenting plan, with the Family Court. A parenting plan can cover residence, contact, child support, or any other issue of parental responsibility. A registered plan has the same effect as an order of the Court, so it binds the parties unless it is revoked by consent or is varied by a later order of the Court.
Currently, this option is not available to lesbian and gay families because it covers plans ‘between the parents of a child’ (although it can also include other people) and neither co-mothers nor donor-dads are ‘parents’ under the Act.
We support changes to the Act to broaden the range of people who can register plans. Such plans provide some certainty to lesbian and gay families as they set a baseline to start from if there is later dispute.
Pros
- flexible, can be used to reflect whatever arrangement families come up with
- can accommodate multi-parent families
- can cover mother-co-mother agreements as well as mother-donor-dad agreements
- provide increased certainty on issues of contact and residence
- can cover child support agreements
- relatively simple process
- uses an existing legal avenue
- many families are drawing up agreements anyway
- the process of drawing up agreements helps to clarify expectations and may assist in avoiding disputes later
Cons
- requires opt-in, if registering requires money, lawyers, a process of drawing up
- does not automatically flow on to other areas of law – eg inheritance
- assumes that people know in advance what their family form will be
- registered plans cannot be varied by consent, only revoked, so can’t be varied to accommodate changes as time goes on