The Law Handbook 2024

Chapter 4.3: Same-sex and de facto couples and families 289 Financial support for children of same-sex parents Even prior to the legal status of same-sex parents amendments, same-sex parents were held liable for child support. The New South Wales Supreme Court considered the financial responsibility of the lesbian partner of a woman who conceived with the assistance of a sperm donor. The court decided, on the facts of that case, that the non-birth mother had promised to provide financial assistance and that she should contribute to the financial costs of raising the children after the relationship had finished (see W v G (1996) 20 Fam LR 49). The amendments to the FL Act make it clear that same-sex parents, whether biological or not, are parents and are therefore liable for maintenance. This applies to lesbian couples deemed under section 60H, but does not apply to male gay couples, who may need to apply to the court for a maintenance order. Starting on 1 July 2009, Commonwealth reforms amended the Child Support (Assessment) Act 1989 (Cth) (‘ Assessment Act ’) and the Child Support (Registration andCollection)Act 1988 (Cth) to recognise newparentage laws for same-sex parents based on the definitions in the FL Act. After separation, either parent can apply for child support from the other parent, whether or not they separated before 1 July 2009. A known sperm donor is not a ‘parent’ for the purposes of the Assessment Act, provided the child is a result of an artificial conception procedure, but may be liable for child maintenance under the FL Act depending on the manner of conception (see B v J (1996) FLC 92–716). In ND v BM (2003) FLC 98–020, a known sperm donor appealed against liability under the Assessment Act. Justice Kay confirmed that where conception of a child is in the ‘usual and customary manner’, the biological parent is the parent at law, and this cannot be altered by agreement. Parental rights and responsibilities Since 1 April 1988, the FL Act has applied to children born both within marriage and outside of marriage in all parts of Australia except Western Australia. When parents cannot agree, decisions are made by the FCFCOA under the FL Act about: • with whom and for how much time the child will have contact; and • where the child will live; • specific issues such as who has responsibility for making choices about the child’s day-to-day and long-term welfare. Changes were made to the FL Act to incorporate the principles of the United Nations Convention on the Rights of the Child (1989). The basic position remains that parents (married or not, and now including same-sex parents) share equal parental responsibility for their child unless: • there is a court order to the contrary; • there is a parenting plan in writing and signed by the parents to the contrary; • paternity is in dispute. Where a child’s parent is in a relationship with another person and they live with that person (e.g. a de facto relationship, or a marriage where the other person is not a ‘parent’), the other person does not automatically have ‘parental responsibilities’ under the FL Act. This means that the person living with or married to the parent does not have the legal capacity to make decisions and give authorisations (e.g. about medical treatment or obtaining a passport) that are the responsibility of a biological parent, a parent under the ART Act (s 60H(1)), or an adoptive parent. An application can be made to a court under the FL Act for an order that the parent and the other person share parental responsibilities. For example, same-sex parents can apply to the FCFCOA for joint responsibility and residence orders (see Re Mark [2003] FamCA 822). The website of the FCFCOA (www.fcfcoa.gov.au) contains a guide for making such joint responsibility applications. The amend­ ment to the FL Act (to presume parentage and parental responsibilities for same-sex parents) and the amendments to the BDMR Act (that provide for both parents to be on the birth certificate or substitute parentage order) have made these orders unnecessary for establishing or proving a legal relationship. However, in the absence of those forms, parenting orders from the FCFCOA are advisable, particularly if the relationship breaks down. (See ‘Parenting presumptions and AI/IVF’, above, for information about the presumptions of parentage for children conceived with reproductive assistance.) Where a decision needs to be made about parenting orders, the presumption of equal shared parental responsibility is the starting point for the orders. However, this presumption can be rebutted