Archive Article
The three proposals we support
MAJOR REPORT - APRIL 2003 |
Recommendation 2
Change the Status of Children Act 1996 (NSW) to make the definition of de-facto partner gender neutral. This will deem consenting co-mothers of DI babies born to lesbian couples as
Recommendation 6
Change the Adoption Act 2000 (NSW) to include a new provision for co-parent adoption. This will allow gay and lesbian co-parents to adopt with a presumption in favour of adoption w
Recommendation 7
Consider whether changes to the Adoption Act 2000 (NSW) to include a new provision for co-parent adoption could be drafted to permit co-parent adoption that granted legal status to
Recommendation 8
Change the Child Support (Assessment) Act 1989 (Cth) to include a definition of “parent” reflecting the reforms in this report
Alternately, introduce child support legislation in NSW using a definition of “parent” reflecting the reforms in this report. A NSW version would mirror the payment provisions of t
Recommendation 9
Allow a simpler and less costly process for lesbian and gay parents to formalise their relationships with children by consent through the Family Court. This could be done through c
Recommendation 10
Government support for a concerted court personnel education program. This is essential to ensure that such decision-makers are aware of, and sensitive to, the particular forms and
MAJOR REPORT - APRIL 2003
There are many different legal avenues that could be pursued to obtain parenting recognition. Below we list the three we support and note their advantages and disadvantages. We explain why we support them, how we see them operating and what responses we have received through our consultation process.
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 legal 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. This would have the same effect as adoption for co-mothers, but would be far cheaper and easier to use.
All of the mothers, co-mothers and mothers-to-be we consulted responded with universal support to the proposal of a simple comprehensive presumption-based deeming provision for co-mothers. They felt that this reform would be an accurate reflection of what they intended when they became parents and what their lived experience of parenting truly was. Lawyers and policy workers also supported this option because of its simplicity, equity and breadth of coverage. It is notable that no fathers who attended consultations objected to this proposal.
Only one written submission objected to this proposal because it rested upon a continuance of the legal assumption that biological fathers through donor insemination are not legal fathers. The author was concerned that in her experience there are some families formed between lesbians and gay men where it is not made clear that the biological father’s contribution is to be a “Donation”. In this context, she was of the view that legal recognition of the co-mother in lesbian-led families with a known donor could lead to increased marginalisation of biological fathers and to conflict with donor-dads who wanted to be involved with their children. The author argued that “Co resident lesbian couples who become the child’s legal parents could have little inducement to extend even minimal contact to biological fathers who were not friends before the reproductive negotiations occurred.”
These arguments are important and need to be addressed. We do not agree with the conclusions drawn for a number of reasons. Firstly, the objection relates only to lesbian-led families where there are known and involved donors. Many lesbian mothers have children through anonymous DI or with known but happily uninvolved donors. Opposing the recommendation prevents reform for all lesbian families with children from donor insemination.
We agree that mothers and fathers need more certainty when extended family forms are contemplated, and we make proposals in this report to achieve this. We do not accept that opposing this proposal achieves this aim. It is clear that conflicts have arisen between mothers and biological fathers over contact with children. As the author of the submission notes, “Co-resident lesbian couples have considerable power to prevent biological fathers from having the opportunity to develop relationships with infant children”. This is true whether or not the co-mother’s relationship is legally recognized. Conflicts have arisen to date even though the co-mother has no legal relationship with the child. A lack of legal recognition with the child does nothing to contribute to a harmonious relationship between the parents.
Indeed our position is the reverse of that posed in the submission: we believe that a lack of legal recognition of the co-mother’s relationship with the child does much to generate uncertainty and defensiveness and contributes to the likelihood of conflict with the biological father. This is because if the co-mother feels that her own role is undervalued or marginalized she is more likely to be threatened by a biological father who asserts the importance of his role as “the dad”. Likewise both mother and co-mother are more likely to object to regular or increasing contact between the biological father and the child if they think that this undermines them as a family unit or decreases the likelihood that the Court would see them as a complete family unit. Based on our consultations and research we are of the view that recognition of co-mothers from birth will encourage certainty and decrease the likelihood of conflict with biological fathers.
Further, we are of the view that co-mother recognition decreases the likelihood of mother versus mother conflict over residence and contact if the mothers’ relationship with each other breaks down. One lawyer reported she had sought consent orders through the Family Court (discussed above) for 50 or 60 lesbian families over the years of her practice. The lawyer reported that of all the family law disputes she had handled between mothers, none of them had taken any steps to formalise the co-mother’s relationship with the child through consent orders. This is consistent with American research which found that where co-mothers had legal recognition (through second parent adoption in several US states) the co-mother was far more likely to have an on-going relationship with the child (including residence of the child) after the mothers had separated.
In addition, when many mothers are sharing the roles of biological mother and co-mother as they have two or more children, it is important that children’s relationships with their siblings be legally recognised. Our proposal achieves this aim.
In 2002 Western Australia introduced a law like this and made the operation of their amendments retrospective – that is they applied it to all lesbian families who had children before the laws were changed. They did not require any steps to be taken by the mothers for the law to have effect. Western Australia also introduced a simple process for the changing of birth certificates to include the non-biological mother so that in addition the co-mother of children already born could opt-in to the birth certificate.
A major issue with our reform proposal is whether it should cover babies born before it passed. If it were introduced prospectively, it would only cover babies born after the date it was introduced, and so would not cover the many children already in existence. By contrast if it were changed retrospectively, it could potentially cover women who never intended to be equal parents when their partner had a child through donor insemination. This would mean a very major change in the law for co-mothers without time for families to adjust their expectations or plans. Because this law is presumptive, it could also cover many families who remained unaware that the law had indeed changed.
While there is a danger of retrospective coverage including too many women (eg women who agreed to their partner having a baby but never intended to be equal parents or to take on parental responsibility) we are of the view that there is a much greater danger of prospective reform covering too few women. There are a great many lesbian families already in existence who need and want maximum legal coverage of their parenting relationships. All of the mothers in our consultations wanted such a change for their families, and all of the research data on lesbian families indicates that the vast majority are comprised of equal parents.
We have come to the view that this reform should be retrospective in operation but only if the mothers are still living together as couple and the child is under 18. This would allow for the simplest and broadest coverage without covering women who may have ceased to relate to the child as a parent, for example if they separated several years earlier. Women who were still cohabiting with minor children but did not want to be covered as parents could opt-out by a simple statutory declaration that they did not consent to being a parent when their partner conceived.
Recommendation 2Change the Status of Children Act 1996 (NSW) to make the definition of de-facto partner gender neutral. This will deem consenting co-mothers of DI babies born to lesbian couples as parents in all NSW laws.This would apply retrospectively to all lesbian couples who were still cohabiting and are jointly parenting resident children born to them as a couple through DI where those children are still under the age of 18 at the time the amendments came into effect.
Adoption transfers all of the legal rights and responsibilities of parentage onto a person who is not the biological parent of a child. This is done through an order of the NSW Supreme Court for most adoptions, or the Family Court if it is a step-parent adoption. Adoption is a comparatively expensive, formal and complex process.
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 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.
Step-parent provisions are not adequate to deal with co-parent relationships. These two situations need to be dealt with differently as they reflect very 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. While Proposal 1, (above) would deem the mothers of a baby born in NSW to both be legal parents, there would still be some mothers who were not covered – for instance if their child was born in another jurisdiction (interstate or overseas).
We support an additional adoption provision for co-parent adoption where there is either only one legal parent or consent from two legal parents. This provision should have a presumption in favour of such an order, or at the very least no presumption against it.
This proposal received universal support in our consultations.
Recommendation 6 Change the Adoption Act 2000 (NSW) to include a new provision for co-parent adoption. This will allow gay and lesbian co-parents to adopt with a presumption in favour of adoption where there exists only one legal parent or there is a second legal parent who is consenting
Some parents were surprised to find that adoption orders currently only contemplate two legal parents, and several people supported changing adoption law to allow for three or four legal parents. Some submissions were concerned that lesbians and gay men should not “buy into” a heterocentric nuclear family model.
A multi-parent adoption model would work best for families where lesbian and gay couples are equally parenting together. In that instance, the provisions would operate with the consent of the mother (or mothers if the co-mother already had legal status by virtue of Proposal 1. Deeming Provision, discussed above) so that all co- parents became legal parents.
Recommendation 7 Consider whether changes to the Adoption Act 2000 (NSW) to include a new provision for co-parent adoption could be drafted to permit co-parent adoption that granted legal status to more than two parents.
It follows that if co-parents are equal parents and are legally recognised across a broad range of areas in NSW law, following Proposals 1 & 2 (above), they should be equally liable for child support obligations along with legal/biological parents. The law in this area is unnecessarily confusing and complex. Currently, while a co-mother could pursue a mother for child support under federal child support legislation if she was the primary residential parent after the couple had separated, the opposite is not true and a mother cannot use the Act to seek support from a co-mother. Both mothers and co-mothers can seek support from each other under general law contract principles, or as part of a property dispute in the NSW Supreme Court under the Property (Relationships) Act 1984 (NSW) but this is an extremely costly and difficult process.
We support a simple administrative procedure to enable separated lesbian parents in NSW to seek financial support from each other for their children. Because child support is not usually a matter of state law, child support obligations do not flow automatically from other changes we propose, and so we include a specific recommendation addressing it.
Recommendation 8 Change the Child Support (Assessment) Act 1989 (Cth) to include a definition of “parent” reflecting the reforms in this report. Alternately, introduce child support legislation in NSW using a definition of “parent” reflecting the reforms in this report. A NSW version would mirror the payment provisions of the federal Child Support Act, and would apply until federal law changed to include the new definitions. This could be administered through a NSW government agency or through an inexpensive body such as a low level tribunal or the Local Court.
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 (and to the outside world), 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 agreements 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, we do support options through the Family Law Act to provide that the parents of a child can record a legal status quo through a court order that gives legal effect to their agreement. This provides a presumption for where the child lives, who they have contact with and who had parental responsibility over them. This can always be varied, but it provides a form of legal recognition and also gives a starting point if there is a later dispute between the parents. This avenue could be pursued by simplifying Parenting Orders by Consent, under the Family Law Act (discussed above) or amending the current provisions for Registrable Parenting Plans.
This proposal is most useful taken in conjunction with Proposals 1 & 2 (above). It is not and cannot be an alternative to them. This is because while Family Court orders cover a range of areas of parental responsibility, they do not make someone a parent for all legal purposes in the way that the deeming provision or adoption does. As noted earlier, Family Court orders only cover a limited range of laws and do not necessarily affect the definition of “parent” and “child” under other laws (eg they do not affect inheritance) and only cover children up to the age of 18, whereupon the effect of the orders lapse.
Several mothers who attended consultations had gone through the existing process of obtaining parenting orders by consent from the Family Court (discussed above) to cover the co-mother. Some women reported that they were considering doing this but were intimidated by the process. Many of the mothers present had no idea this was even possible. No biological fathers had gone through parenting orders by consent to formalise their relationship with children being raised jointly with lesbian mothers.
Both mothers and fathers strongly supported this proposal as a way of achieving some certainty around parental responsibility for mothers and contact for biological fathers.
Since 1999 it has been possible for heterosexual parents to 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. This is simpler and cheaper than Parenting Orders by Consent, but has basically the same legal effect. 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 biological fathers through donor insemination are ‘parents’ under the Act.
We support changes to the Family Law Act 1975 (Cth) 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.
A major disadvantage of this proposal is that it requires amendment to federal legislation at a time when the Federal Government has shown a marked hostility to lesbian and gay families. The Federal Government has, among other things, refused to include lesbian and gay de facto couples in the Family Court regime if the states give over their powers on de facto couples (five states and territories currently cover same-sex couples in their laws).
For this reason it may be more feasible to pursue a simplified form of Parenting Orders by Consent.
The operation of these orders is discussed earlier in this paper in the section: Current Recognition Avenues. These orders have very much the same effect as Registrable Parenting Plans would, but at present they are somewhat more complex to achieve because they require parents to convince a Registrar or Magistrate that the orders are in the child’s best interests. Some Court personnel are bewildered by the use of this process by two applicants (the mothers applying as a unit) rather than an applicant and a respondent (separating heterosexual parents) and are unclear on the correct procedures to follow: this can cause delay. Some Court personnel are also hesitant to grant orders if there is a known donor and he is not involved in proceedings. However, these difficulties could all be addressed through training and changes to administrative practice.
If this process were made simpler and more user-friendly through changes to administrative practice, the same end result as registered plans would be achieved without requiring legislative reform. In the present political climate this is a very significant advantage and would enable change to be effected quickly. This proposal is far more possible given the fact that the Family Court of Australia has undertaken many steps in recent years to make itself more accessible to unrepresented parties, including the launch of Do-it-yourself kits on the Court’s website. If the Court were to undertake to simplify the process for consent orders, train key personnel around procedure and issues for lesbian and gay families, and tailor some of their help kits to suit the needs of our families, this recognition option would be much more accessible.
Recommendation 9 Allow a simpler and less costly process for lesbian and gay parents to formalise their relationships with children by consent through the Family Court. This could be done through changes to the Family Law Act 1975 (Cth) to enable registration of parenting plans for lesbian and gay families. Alternately the same effect could be achieved through administrative changes within the Court to simplify the process for parenting orders by consent. Recommendation 10 Government support for a concerted court personnel education program. This is essential to ensure that such decision-makers are aware of, and sensitive to, the particular forms and needs of lesbian and gay families. It is essential that court personnel do not work from stereotypes or improper analogies drawn from heterosexual family forms. This program needs to cover: judges and counsellors in the Family Court of Australia and magistrates in the Federal Magistrates Courts and those in NSW Local Courts, hearing family matters, as well as judges and masters of the NSW Supreme Court hearing property and adoption matters. Consideration could also be given to instituting a gay and lesbian liaison officer in courts, as some other NSW government agencies have already done within departments.