Archive Article

Reform: How and why

MAJOR REPORT - APRIL 2003 |

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 automatic or require people to take formal steps?

MAJOR REPORT - APRIL 2003

Two overarching issues that run 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 automatic or require people to take formal steps?

Our general approach is that wherever possible the broadest range of our parenting relationships should be recognised. Legal recognition is in children’s, as well as their parents’, best interests, as it reflects and protects their relationship of emotional and financial dependence. We emphasise relationships of care and dependence and do not prioritise biology.

Co-parents who raise a child from birth are in the position of most immediate need, as they have no legal relationship with their child in almost every area and are those most likely to suffer disadvantage without it. Co-parents should be legally recognised as the equal parents they really are in fact. We support the full legal recognition of all co-parents as an urgent priority.

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 in order to suit each different family circumstance.

We propose change that is simple, flexible and achievable. Where possible, we suggest extending and modifying existing legal regimes. 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.

We suggest a mix of automatic recognition and measures that require formal steps, in order to be flexible and yet simple. Presumption based laws, such as the current partnership recognition laws in NSW, apply automatically after you have met certain criteria (eg living together in a committed couple relationship) and you do not need to do anything to formalise your relationship status. With many of these laws, you can opt-out if you wish. Opt-in recognition works on the basis that you must take active steps to register a relationship or to formalise it.

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. This presumption is justified on the basis that co-mothers are fully involved and equal parents with mothers. It also means that where there are two or more children in a lesbian family (where commonly each woman may be the biological mother of different children) these children are given legal recognition as siblings. We include a simple opt-out provision for the partners of mothers who do not want to be legal parents.

We need to be able to accommodate many biological fathers who have no legal relationship, but a varied spectrum of social relationships, with their child, as well as other parent figures who may not have any biological connection to the child (such as the biological father’s partner). The law should also recognise other parent figures, such as step-parents, as lesbian and gay families separate and re-form. The range of parent figures whose roles may differ or evolve with time requires 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.
Biological fathers who have children as a known donor to a lesbian couple may have no relationship with the child; a loose friendly relationship with the child with occasional contact; a close relationship with regular contact; or may indeed be an equal parent with the mothers, sharing residence and parental responsibility. There is no one-size-fits-all for biological fathers and we are opposed to the imposition of one through the automatic ascription of legal status to all known donors – many of whom never planned to be, or were intended by the mothers to be, legal or social parents.

In our consultations we found that a minority of mothers and some fathers wanted the biological father in families formed through donor insemination to have legal recognition, but all were unanimous in agreeing that they wanted a form of recognition that was tailored to their individual family form and opt-in. In the fathers-only consultation there was strong agreement on this point. One father responded that while automatic recognition would suit his family situation, he was aware that of gay and lesbian DI families, those with equally involved dads were a small minority and added that, “It would be wrong to impose fathers onto all lesbian families.” It was also noted that automatic recognition of a biological father did nothing to assist a father’s partner, where the two of them were equally parenting with a lesbian couple.

Non-biological co-fathers in father-led families are not in the same situation as co-mothers in lesbian mother-led families because they are not having children with a partner through donor insemination – so current presumptive laws could not be extended to them. 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 or fostered, co-fathers should be recognised through the availability of joint adoption. Where two gay men have entered into a family with a lesbian couple, the non-biological father may have an equally important role in the child’s life to that of the biological father. Multi-parent adoption provisions could cover this situation, or more limited recognition could be afforded through reform proposal 3: A Simple Status Quo through the Family Court. These proposals were strongly supported by fathers in our consultations.