Choices for pregnant women
A woman who becomes pregnant has choices. If she decides to have the child, she is under no legal obligation to tell the man with whom she became pregnant. If she seeks financial assistance from Centrelink, she may be required to provide information about the father and may be refused assistance if there are not good reasons for her not seeking child support from the child’s father (see Chapter 4.2: Parental responsibilities and child support).
For telephone support, information and referral, contact the Council of Single Mothers and their Children (see ‘Contacts’ at the end of this chapter).
Children conceived with reproductive assistance
Section 7 of the ART A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. prohibits assisted reproductive treatment and section 8 of the ART Act prohibits insemination (known as ‘artificial insemination’) by anyone other than a doctor and for assisted reproductive treatment, in any place other than a hospital or registered clinic and providing divisions 2, 3 and 4 of the ART Act have been met. These requirements include To agree to something being done, to approve an action or arrangement. See also informed consent., unlikelihood of pregnancy other than by treatment procedure, a child An order made by a court in response to a protection application. This may involve removal of the child from the family. check and counselling. The penalty is 480 penalty units (see ‘A note about penalty units’ at the start of this book) or four years’ imprisonment, or both. Section 8 does not apply to a woman or her partner assisting in self-insemination (see, for example, McAuley v Salberg  FCCA 1538, discussed above).
Under section 4 of the FL Act, an ‘artificial conception procedure’ includes artificial insemination and the implantation of an embryo in a woman’s body. This definition is relied on in section 60H.
Parenting presumptions and AI/IVF
In the case of married heterosexual couples using artificial insemination (AI) and in-vitro fertilisation (IVF), the SoC Act (s 10C) provides that the husband is presumed to be the father and to have caused the pregnancy and the donor is irrebuttably (i.e. not open to question) presumed not to have caused the pregnancy. Similarly, under section 10E, there is an irrebuttable presumption that a woman who produces a child by using another woman’s ovum is irrebuttably presumed to be the mother, and the woman who produced the ovum is irrebuttably presumed not to be the mother.
As discussed above, the amended SoC Act now brings same-sex female partners in line with heterosexual couples; where donor semen is used to conceive a child and the partner (also defined as the ‘non-birth mother’ (s 2)) consented to the treatment, she is irrefutably presumed to be the parent and the donor is irrefutably presumed not to be the parent, and that this prevails over any conflict.
Similarly, the amended section 60H(1) of the FL Act conclusively presumes the partner (‘the intended parent’) to be the parent of a child born through an assisted treatment procedure.
There has always been a presumption against parentage for sperm donors; however, a number of Family An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. decisions have resulted in donors being granted rights.
In Re Patrick  FamCA 193, a case concerning contact between a sperm donor and the child of a lesbian couple, Justice Guest granted the sperm donor contact rights and the right to play a role in the child’s life akin to that of a post-separation father.
The Family Court at Melbourne revisited the position of a sperm donor in R & J  FamCA 1398 (also H & J & D, an ex tempore judgment), making orders for regular contact between the donor and the child. The application was brought by the donor seeking increasing overnight contact with the child and that the biological mother be ordered to inform the child of the factual identity of the donor as his ‘biological father’.
In Oxbourne & Ewans  FamCA 125, the child’s mothers (biological mother and her partner) were found guilty of breaching the court orders made at first instance. These orders provided that the child was to spend time with his biological father (sperm donor) and was to speak with him over the phone and on Skype. Not only was the sperm donor granted contact rights in this matter, but those rights were enforced by the court. Breaches of the orders by the designated parents were penalised.
See also ‘The Status of Known Sperm Donors under the Family Law Act’, Australia Family Lawyer, vol. 18, no. 4.
When there is a dispute between the parents and donor, the The most important thing, above anything else. An act of paramount force is one that cannot be made subject to another for its operation. Something of value, such as money, given by one person to another person as part of a contract. under the FL Act is the best interests of the child. This cannot be displaced by any pre-existing agreement or understanding that the parents and donor may have entered into. Recent cases indicate that if there is an existing relationship between the donor and the child, the court may make an order for the child to spend time with the donor.
In light of this, same-sex prospective parents contemplating the participation of a known donor should seek family law advice before proceeding.
Changes to the FL Act now allow two ways of establishing paternity:
- under the FL Act (pt VII div 12); and
- under the SoC Act.
Parentage under the Family Law Act
The FL Act establishes certain presumptions of parentage; these presumptions are Capable of being proved wrong in court. Compare deemed. by proof on the More likely than not. The plaintiff in a civil case (a non-criminal case) must prove that what they are arguing is more likely to be true than false. This is called the standard of proof. See also beyond reasonable doubt.. A man is presumed to be the father of a child arising from:
- A voluntary, formal and legally binding agreement between two people to have a permanent relationship together. There must be a statement in front of official witnesses who register the marriage with the authorities. See also cohabitation; de facto; divorce; domestic relationship. (s 69P);
- Living together as a couple sharing an emotional and sexual relationship. Also, where a group of people live together on a long-term basis, as members of a family do., or the child being born within 20 weeks of the parties separating (s 69Q);
- acknowledgment of paternity by an A formal document, in writing or digitally authorised, which has a legal effect. For example, a transfer of land is an instrument that has the effect of changing ownership from one person to another. (s 69T).
There is a presumption of parentage arising from:
- registration of birth (s 69R); or
- a court finding (s 69S); and
- a declaration of parentage by the Family Court is conclusive Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. of parentage for all laws of the Commonwealth (s 69VA).
It should be noted that the presumptions arising under these sections of the FL Act are rebuttable by proof on a balance of probabilities (s 69U(1)).Where, in a court proceeding, paternity is in dispute, the court is empowered to order a parentage testing procedure, which can include a blood or genetic test. Failure to take the test incurs no penalty but the court may draw such inferences about the refusal to take the test as appear just (s 69Y). The report on the test is admissible as evidence (s 69ZC).
Parentage arising from artificial conception
Under section 60H of the FL Act, the birth mother of a child artificially conceived is presumed to be the parent of that child, regardless of whether or not the child has her DNA.
If the birth mother was in a marriage or de facto relationship, including a same-sex relationship, at the time of conception, then her married or de facto partner is also Treated by the law as if something is the case, even if that is not the reality. For example, children may be deemed to have the same home as their parents, whether they actually live there or not. Or a person may be deemed to have given their consent to something if they hear about it and do not object. Compare rebuttable. to be a parent of the child, provided they consented to the procedure.
The birth mother’s married or de facto partner is presumed to have consented to the birth mother undergoing an artificial conception procedure, unless there is evidence of the contrary on the balance of probabilities.
If the donor of DNA Relevant or important. For example, material evidence is something that helps to prove an argument in a criminal case. for a child conceived artificially is not in a marriage or de facto relationship with the birth mother, then the child is not the donor’s child (s 60H(1)(d) FL Act).
However, Family Court decisions relating to applications for parental responsibility – including Re Mark  FamCA 822 and Groth & Banks  FamCA 430 – have found that section 60H of the FL Act does not confine the categories of person who can be deemed to be a parent of a child conceived artificially. Rather, the language of this section enlarges the categories of person who can be deemed to be a parent. In particular, if the mother is not married or in a de facto relationship at the time of conception, a sperm donor can obtain a declaration of parentage if it can be shown that he provided the sperm donation for the express intention of parenting the child (see Groth & Banks  FamCA 430, Masson v Parsons  HCA 21, and McAuley v Salberg  FCCA 1538).
In 2018, the Full Court of the Family Court handed down its judgment in the matter of Parsons & Masson  FamCAFC 115. In this case, the mother and father, after separating, agreed to undergo IVF and raise the child (child B) as separated parents. Child B was born; the father was the biological father of this child. The mother re-partnered with a woman, they married in 2015, and conceived child C. The father was a father figure to both child B and C. Court orders were made for the father and two mothers to equally share parental responsibility, and for the father to spend substantial time with child B and C. The two mothers appealed these orders.
The issue was the relationship between section 60H of the FL Act and section 14 of the SoC Act NSW. On The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision., the court decided that section 60H of the FL Act does not ‘otherwise provide’ within the meaning of section 79 of the Judiciary Act and therefore section 14 of the SoC Act NSW must apply. The court also found that section 60H of the FL Act does not enlarge the category of people entitled to the status of ‘parent’. The court emphasised that, as there can only be two parents for the purposes of the FL Act, this creates doubt as to whether Groth & Banks is still applicable. It was therefore held that the primary judge erred in finding the (1) A defendant in a civil case that has been appealed to a higher court. (2) A person against whom some originating motion has been issued by an applicant. See also appellant. to be a legal parent of child B.
In cases involving commercial surrogacy, paternity cannot be established through DNA testing. In Bernieres & Dhopal  FamCa 73, the court ruled that it had no power to order a paternity test as under section 69V of the FL Act; the court only has authority to order the test if paternity is an issue in question before the court. This issue was not overruled on appeal and was affirmed in the later case of Lamb v Shaw  FamCA 769. Section 69VA is not a stand-alone power used to remedy issues with section 60HB.
In the case of surrogacy agreements, this is not the case. Furthermore, Justice Watts in Re Michael (2009) 41 Fam LR 694 confirmed that parental orders given under Commonwealth Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute. can only be made in accordance with state legislation. Consequently, section 60HB of the FL Act does not give the court power to grant legal parentage to the biological parents in commercial surrogacy agreements, as this would be inconsistent with state parliament intentions, given that there is no Victorian law allowing for legal parentage of children born through commercial surrogacy.
Parentage under the Status of Children Act
Under the SoC Act, a husband is presumed to be the parent of children born to his wife, and children born up to 10 months after the marriage dissolves (s 5).
Alternatively, paternity can be established by any of the following:
- the name of the father being entered in the Register of Births and hence on a birth certificate (s 8(1));
- the father and mother jointly signing a statement in the presence of a A legal practitioner (lawyer) who sees clients and opens files to deal with their legal matters but usually does not appear in court. See also barrister. stating that he is the father; that is, an acknowledgment of paternity is made in accordance with section 8(2). This statement should be forwarded to the The officer in charge of the administrative section of a court, which is known as the registry. See also prothonotary. of Births, Deaths and Marriages; or
- a Supreme Court declaration of paternity (s 10).
In AED v Registrar-General of Births, Deaths & Marriages; AED v GWK  QSC 287, By authority of, or in accordance with, or as directed by, some court order or legislation. section 10 of the Status of Children Act 1978 (Qld), it was declared that the deceased (CDJ) was a parent of the applicant. In this matter, the applicant had been sexually abused by her adoptive father throughout her childhood and wanted to identify her biological father and obtain a declaration of parentage in favour of her biological father.
If the man denies that he is the father, evidence must be given that corroborates the mother’s evidence. Until paternity is proven, he is not required to pay child support.
Corroboration is not necessary if the Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. father is in court and does not give evidence on A person’s promise when they swear to tell the truth in court, or when signing an affidavit. A person taking an oath places one hand on the Bible or other holy book to demonstrate how seriously they take their promise. See also affirmation. denying the allegation. Also note that corroboration of the mother’s evidence is not necessary if the alleged father is not present, but the court is satisfied that he was served with a A formal document issued by a court which says someone must appear in court on the date stated in the document. See also service; writ.. A court order can be set aside later if it can be proven that the father was not served with a summons.
Evidence from someone who saw intercourse taking place is uncommon. Usual corroboration is:
- evidence of admissions by the A person who has been charged with a criminal offence or against whom a civil action has been brought.;
- denials by the defendant relating to the circumstances that are shown to be false; and
- evidence of payments (or agreements to pay) made by the defendant.
Blood tests can only be carried out if all parties agree to them. They can now provide positive proof of paternity if a sophisticated form of testing is used. This is known as genetic tissue typing and in particular human leucocyte antigen testing. The usual requirements as to expert witnesses apply and a court must be satisfied on the balance of probabilities that the defendant is the father (s 10). As noted above, blood tests may be ordered by a court and adverse inferences drawn from a refusal to take such a test.
See ‘Parenting presumptions and AI/IVF’, ‘Assisted reproductive treatment’ and ‘Surrogacy’, all above, for discussion of parentage presumptions for children conceived with reproductive assistance or through surrogacy.
The SoC Act provides that all children who have a mother and a father (actual or presumed) are of equal status under the law, regardless of whether their parents were married or not. For the purposes of inheritance this applies to children whose fathers die without a A document that sets out what a person wants to happen to their money and other property after they die. or where the will was made after 1 March 1975 (the commencing date of SoC Act), and where paternity was established before the father’s death.
While the amended SoC Act provides presumption of parentage for children conceived through assisted procedures, it omits a provision for equality of status, and the transitional provisions exclude property interests or the vesting of property interests prior to the amendments. People in domestic relationships with children or step-children they wish to benefit should obtain legal advice about making express provisions for inheritance in a will. See also ‘Claims on a deceased partner’s estate’, below.
Social security entitlements
Benefits during and after pregnancy
A woman unable to work during pregnancy may be eligible for financial assistance from Centrelink. The type of benefit or allowance that may be paid differs according to her situation. For example, if the woman has a job to return to, she would apply for the Sickness Allowance; if she does not have a job to return to, she would apply for the Newstart Allowance (which is paid at the same rate as the Sickness Allowance).
Whether employed or not, a woman under the age of 21 years would apply for Youth Allowance.
Applications for the Sickness Allowance must be accompanied by a medical certificate.
Once the baby is born, the mother may be eligible for other benefits, payments or allowances. For example, parental leave pay can be accessed by the birth mother of a newborn child if certain conditions are met. As of 1 July 2020, 30 flexible paid parental leave days are available. This offers individuals greater freedom in choosing how and when to take paid parental leave. For more details, see Chapter 5.1: Dealing with social Money or property promised to be handed over as a guarantee for repayment of a loan, or as a guarantee that a defendant will meet their bail conditions., or contact Centrelink on 13 27 07.
Registration of birth
The BDMR Act requires that a birth must be registered within 60 days with the registrar of Births, Deaths and Marriages (see also ‘Naming a child’, in Chapter 4.6: Changing your name). The parents of a child are jointly responsible for registering their child’s birth, but registration by one parent only can be accepted (see Pidgon v Registrar of Births, Deaths and Marriages  NSWCATAD 170).
Both parents share the right to choose a name for their child. Where the parents cannot agree, a court can resolve the dispute. For more information, see Chapter 4.6: Changing your name.
Registering children conceived with reproductive assistance and through surrogacy arrangements
To register a child’s birth when the father is unknown, the registrar of Births, Deaths and Marriages requires the mother to provide an A document that presents written evidence in a court case, setting out what a witness says is true. The witness must swear that it is true and correct in front of an authorised official. This can be done on oath or by affirmation. The person in whose name the document is sworn is called the deponent. explaining why the father is unknown. In the case of AI or IVF through a registered fertility clinic, the mother’s affidavit must be accompanied by a letter from the clinic, confirming the circumstances of the child’s conception.
Foreign birth certificates do not create a presumption of parentage. This is relevant if the mother or father is foreign and not identified on the birth certificate. In this situation, it is recommended that a A court order for the care of children when their separated or divorced parents cannot reach agreement on a parenting plan. The order covers matters such as where the child will live, contact with the parents and financial support. be sought from the Family Court.
As discussed above, in relation to lesbian parents, Part 15 of the ART Act has amended the BDMR Act to provide that the non-birth mother (referred to as the ‘mother’s female partner’) can be registered as a parent on her child’s birth certificate by application to the registrar (s 17A BDMR Act).
The A change made to a legal document or Act of parliament. came into practical operation on 1 January 2010. The application form must be jointly signed and accompanied by proof of identity and a A written statement of facts that meet statutory requirements by being signed and declared to be true before an official authorised to take declarations. by the mother’s female partner confirming her consent to the donor treatment procedure at the time the procedure took place. The provisions also apply retrospectively so existing birth certificates can be corrected to include the mother’s female partner as a parent.
The relevant date for the parents’ relationship is the date the procedure took place that resulted in the child’s birth. So parents who separated at any time after their child’s birth can still apply to correct the birth certificate to include the mother’s female partner as a parent. Where a birth mother withholds her consent to the application, the non-birth mother can apply to the Family Court or Federal Circuit Court for an order effecting the correction (see s 20 BDMR Act; Dent & Rees  FMCAfam 1303).
Because a donor of semen is irrebuttably presumed not to be the child’s parent under Victorian law, the donor cannot be placed on the child’s birth certificate as a parent. To name a donor as a parent on a child’s birth certificate is to make a false declaration and penalties may apply. The legal parents are the birth mother and her female partner.
In the case of Roden & Montiel  FCCA 1641, the sperm donor was not referred to as the father on the child’s birth certificate. Although section 60H of the FL Act operated here to prevent the sperm donor (the father) from being classified as a parent, he was found to have The right to appear in a court action and be heard. In general, a person cannot bring a case or have their say in a court about something that does not directly affect their interests. They must be able to show that they have sufficient interest in the case because, for example, of possible effects on their property or commercial activities. Also called locus standi. to apply for a parenting order under section 65C as he was concerned with the child’s care, welfare and development.
For information on applying to the County Court for an order correcting a birth certificate to replace the donor with the mother’s female partner, visit www.rainbowfamilies.com.au.
The central donor The administrative section of a court that accepts documents filed with the court and also handles some public enquiries.
For donor-conceived births that occurred after the introduction of the ART Act, information about the donor must be registered in the central donor registry. This information is not included on the child’s birth certificate, but there is an addendum to the certificate stating that further information is available about the entry. This information about the donor can only be given to the person conceived using donor sperm when they are 18 (or beforehand with their parents’ consent) and/or the parents of a donor-conceived person. The purpose is to entitle children born through donor insemination to access information about their biological origins. If the request for information is from the parents, the donor must consent to the information being released.
It is the responsibility of the fertility Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence. to send the donor’s information to the central registry. In the case of home insemination with a known donor, it is the parents’ responsibility to send a letter to Births, Deaths and Marriages Victoria stating the donor’s full name, date of birth, place of birth and contact details. The donor must sign the letter and provide proof of identity.
Registration of children conceived through surrogacy
For surrogacy arrangements involving artificial insemination, the surrogate and her partner are the child’s legal parents due to the legal presumptions of parentage under the SoC Act (see pts II, III, IV). The surrogate is responsible for registering the child’s birth.
The commissioning parents must apply to the County Court for a substitute parentage order (not less than 28 days after the birth and not more than six months after the birth) and provide a copy of the certified birth certificate. Once the court makes a substituted parentage order, the commissioning parents are the child’s legal parents (see, for example, Cahan & Kafka  FCCA 2421).
The registrar must register the surrogacy, enter the details in the Surrogate Birth Register and mark the original birth entry as ‘closed-surrogate’ (see s 19A BDMR Act).
The presumption of the surrogate’s legal parentage does not prevail over a substituted parentage order (see s 19 SOC Act). The amended forms are available at www.bdm.vic.gov.au.
Under the Adoption Act 1984 (Vic) (‘Adoption Act’), before an adoption can proceed, the child’s mother must consent to the adoption by signing an agreement.
An Out of marriage; illegitimate. Used to describe a child born of the couple. child’s father must also consent to the adoption if he is registered as the father with the registrar of Births, Deaths and Marriages, or where he has been found by a court to be the father (s 33). Where paternity has not been established, but a particular man is believed to be the father, he is to be notified (within two days of the mother signing her consent) that the child’s mother has consented to the child being adopted (s 49). If a possible father begins proceedings to establish paternity, the adoption will not continue until the paternity application has been determined. If paternity is established, his consent to the adoption is required (ss 33, 49).
Under the Adoption Act (s 43(1)), the court may dispense with a person’s consent to an adoption of a child in a number of circumstances. This is especially the case where requiring consent from a particular person is not in the child’s best interests. In the New South Wales case of ReAdoption of A (Anonymised)  NSWSC 124, it was emphasised that when considering the potential adoption of a child, the best interests of the child must be the court’s parmount consideration. Here, the consent of the birth parents was dispensed with as their mental states (affected by mental illness and cannabis use) meant they were unable to properly consider the question of whether consent should be given.
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.
For further information about adoption, see Chapter 4.5: Adoption and the law.
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 A parenting order that sets out arrangements for the financial support of a child, including making regular payments to the other parent to help with the costs of bringing up the child. (s 66F).
A mother can also claim The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs. from a person who concedes that he is, or is found to be, the father. She can claim costs for her Money paid to a person to financially support them. When a couple has separated both parents have a duty to support their children, and a court can order a parent to make regular payments to support the children. Maintenance for a spouse is now less common, and must be applied for within 12 months of a divorce. It is usually covered in a final settlement of all property. 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 Family Court or 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 The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult., 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  HCA 51, a claim for A court order for money to be paid to someone to compensate them for a loss suffered as a result of a civil wrong or breach of contract. For example, a person who caused a serious permanent injury to another person can be ordered by the court to pay damages that compensate the injured person for their loss of income from being unable to work. See also aggravated damages; compensatory damages; general damages; liquidated damages; nominal damages; special damages. using the A civil wrong that causes harm, intentionally or otherwise. A person affected by a tort can take action in court to claim compensation for damage caused by the wrong, or an injunction to stop the wrong continuing. 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 & Darrett  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 ‘Child and spousal maintenance’ in 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.
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 and Collection) Act 1988 (Cth) to recognise new parentage 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 Legal responsibility, enforced by civil or criminal courts. 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 Family Court under the FL Act about:
- where the child will live;
- with whom and for how much time the child will have contact; and
- specific issues such as who has responsibility for making choices about the child’s day-to-day and long-term welfare.
Changes 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 A written agreement between parents who are separated or divorced, covering arrangements for the care and financial support of their children, including where the children will live and who will pay for what. 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 section 60H(1) of the ART Act, 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 Family Court for joint responsibility and residence orders (see Re Mark  FamCA 822). The Family Court website (www.familycourt.gov.au) contains a guide for making such joint responsibility applications. The amendment 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, Family Court parenting orders 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 regarding parenting orders, the presumption of equal shared parental responsibility will be the starting point for the orders. However, this presumption can be rebutted (see Chappell v Chappell  FamCAFC 143). Section 61DA(4) of the FL Act 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  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 Family Court 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.