The Law Handbook 2024

290 Section 4: Relationships, families and young people (see Chappell v Chappell [2008] FamCAFC 143). The FL Act (61DA(4)) provides that the presumption of equal shared parental responsibility can be rebutted if there is evidence that it is not in the child’s best interests. Where the presumption is rebutted, an order of sole parental responsibility can be made. This can occur in the context of a same-sex relationship (see McAuley v Salberg [2020] FCCA 1538). If the parent and partner are married or living together for at least two years, the partner is eligible to make an application under the Adoption Act. The effect of adoption is to make the child the same at law as if they were the natural child of the adoptive parents. The adopted child is treated the same way as a natural child under the FL Act, the Wills Act 1997 (Vic) and Administration and Probate Act 1958 (Vic). An adoption order is not vacated or discharged by the adoptive parent’s death. If the natural or adoptive parent dies, that parent’s will cannot transfer parental responsibilities to the partner (or any person). If the parent dies, an order under the FL Act is the only way to confer these responsibilities. Without a court order, only the other natural or adoptive parent, if there is one, is deemed by law to have the responsibilities. In all decisions about children’s matters, the FCFCOA must view the best interests of the child as the paramount consideration. Decisions made under the FL Act state that matters such as the sexual orientation of a person, or whether the person is married or not, are only relevant if the best interests of the child are affected. Other financial matters for de facto and same-sex partners There are different laws covering compensation or benefits arising from a work injury, being a victim of crime, or transport accidents. Domestic partners or children within the domestic relationship are eligible (see Chapter 10.2: Transport accident injuries; Chapter 10.3: Work injuries; and Chapter 10.6: Assistance for victims of crime). Claims on a deceased partner’s estate The Administration and Probate Act 1958 (Vic) (‘ A&P Act ’) is one of the Acts amended by the SLAR Act (see ‘Domestic relationships’, above), and now includes domestic partners. The A&P Act now applies where a person dies intestate and is survived by a domestic partner or by both a domestic partner and a spouse. Section 51 provides for the partner’s entitlement – ‘partner’ is defined by section 3 as a spouse or domestic partner – and section 51A provides a sliding scale of entitlements where the intestate leaves a domestic partner and a spouse. If the deceased leaves a will that does not adequately provide the proper maintenance and support of ‘a person for whom the deceased had a responsibility to maintain and support’, an application can be made to the Supreme Court of Victoria for a greater share of the estate. The validity of a will can also be challenged on grounds of unfairness due to the prospective beneficiary being estranged from the testator at the time the will was created. For example, in the case of Kiernan v Cranston and Purcell as Executors of Will of Cranston (No 2) [2019] WASC 410, the testator made no provision in her will for her adult children. At the time the will was made, the testator was estranged from both of her children. In the circumstances of the case, the court, using its discretion, amended the will to make provision for the testator’s two children. This precedent has been further affirmed in the case of Keaton v Gumulak [2020] NSWSC 943, in which an estranged adult child claimed for the provision of her deceased mother’s estate. The plaintiff had a diagnosis of post-traumatic stress disorder and borderline personality disorder, which affected her behaviour. The plaintiff’s conduct was a driving factor in the estrangement. Ultimately, the will was successfully disputed. This means of contesting wills is relevant to the LGBTIQA+ community as it may often be the case that potential beneficiaries are excluded from a will due to their estrangement from the testator because of their sexual or gender identity. It used to be that only the widow, widower or children of the deceased could make such an application. Since 20 July 1998, anyone who falls within the description of ‘a person for whom the deceased had a responsibility to maintain and support’ can apply. Where the person died before that date, the previous limitations apply. For further information, see Chapter 9.3: Wills. Centrelink payments A pension or benefit may be refused or ended on the basis that a parent is living in a ‘marriage-like