The Law Handbook 2024

288 Section 4: Relationships, families and young people mother opposed the proposed adoption, the court held that adoption was in the child’s best interests, given the birth mother’s violent history, mental health problems, and drug and alcohol abuse. Adoption and same-sex couples In December 2015, the Victorian Parliament passed amending legislation to remove the discrimination against same-sex couples adopting children under the Adoption Act. The Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) came into effect on 1 September 2016. Since this date, the term ‘de facto relationship’ has been replaced by ‘domestic relationship’, which is defined as a relationship between two people living together as a couple, irrespective of gender. Also, all references to ‘man and woman’ are replaced by ‘person(s)’. Section 11 (which deals with in whose favour adoption orders may be made) is amended to allow an adoption order to be made in favour of two people in a domestic relationship. Section 26 of the SoC Act provides that if there is a substituted parentage order to the commissioning parents of a surrogacy arrangement – often gay male couples – then, while the child is not an adopted child, the Adoption Act applies as though the substituted parentage order were an adoption order. In this way, the child of the commissioning parents has all the rights and entitlements as a legal child of those parents. Financial support for children The FL Act allows a parent, grandparent, child, or any other person with an interest in the child’s welfare, to apply for a Child Maintenance Order (s 66F). A mother can also claim costs from a person who concedes that he is, or is found to be, the father. She can claim costs for her maintenance before the birth, her reasonable medical expenses in relation to the pregnancy and birth, and (if appropriate) the reasonable expenses of the child’s funeral. To claim these costs, the mother needs to apply to either the FCFCOA Australia or to a Magistrates’ Court, either during the pregnancy or within 12 months of the birth. In deciding the father’s financial contribution, a court takes into account the income, earning capacity, property and financial resources of both parents, and their financial commitments to others. Entitlement to a pension is not taken into account. Where paternity is disputed, an application may be made for parentage testing (see ‘Paternity’, above). No court order regarding the father’s financial contribution can be made until paternity is established. In the High Court case of Magill v Magill [2006] HCA 51, a claim for damages using the tort of deceit was brought by a man against the mother of a child on the basis that the mother had deceived him about being the child’s biological father. The High Court found that actions in the tort of deceit that must comprise express and fraudulent misrepresentations and excludes silence in the absence of a legal or equitable obligation to disclose facts, does not fit with the nature of marital relationships and are therefore likely to fail. The High Court found there is no legal or equitable foundation for asserting a duty of spouses to disclose to each other issues of paternity or the wider topic of sexual infidelity. Nevertheless, the court found that under the FL Act a husband may be entitled to seek to have repaid any money wrongly paid for child support, or child maintenance, as a consequence of misrepresentations. In the case of Darrett and Darrett [2020] FamCA 236, issues relating to a child support departure order were considered. Due to a change in financial circumstances, the court allowed a departure from the administrative assessment of child support payable by the father; the court set an annual rate of child support at $5000 per child. This demonstrates the flexibility the courts have in determining a child support payment plan that is appropriate in the particular circumstances of a case. The ongoing financial support of Victorian children is covered by Commonwealth legislation regardless of whether the child was born to married or unmarried parents. The basic policy is that both parents should contribute to the financial costs of their children. The law expects that the obligation upon parents ends when the child reaches 18 years of age, unless special circumstances apply. Where the child is 18 years old and is studying or has a disability, a parent (or the child) can seek a maintenance order from a parent under the FL Act (see Chapter 4.2: Parental responsibilities and child support). Sole parents who apply for Centrelink benefits may be required to take reasonable child-support action against the father or other parent of their child, have the support administratively assessed, or lodge an agreement with the Child Support Agency that is acceptable to Centrelink.