Outside the Nuclear Family. Same-sex Law Reforms and notions of Parenthood

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1 Outside the Nuclear Family Same-sex Law Reforms and notions of Parenthood (c) Alexandra Harland Senior Lawyer York Family Law 1

2 Same sex couples have been forming families for many years and will continue to do so whether or not they are legally recognised. The Family Law Amendment (De Facto Matters and Other Measures) Act 2008 (Cth) introduced not only the financial aspects of de facto relationship breakdown into the Family Law Act 1975 (Cth), but also changed a number of the parenting provisions in the Family Law Act in significant respects for same-sex couples and surrogate families. The amendments commenced on 21 November 2008 to much less publicity than the de facto financial reforms. It is timely to look at the parenting provisions in the Family Law Act in the context of same-sex parenting and to ask the question: what should our notion of parenthood be? This article will examine those changes and also look at same-sex parenting reforms which have occurred in the last few years. It will also examine some of the parenting provisions in the Family Law Act itself and cases which discuss those sections. Law Reform The issues of same-sex parenting and same-sex relationship recognition have been the subject of many papers, lobbying and debate over the past several years. 1 The New South Wales Law Reform Commission (NSWLRC) looked at the issue of same-sex parenting reform in April 2002 in its discussion paper Review of the Property (Relationships) Act 1984 (NSW), Discussion Paper 44. The New South Wales Law Reform Commission ( NSWLR ) commented on other jurisdictions where there is recognition of same-sex families through stepparent adoption. The NSWLRC pointed out that children conceived in the context of a lesbian relationship are disadvantaged by having one legally invisible parent. The NSWLRC also discussed whether or not there should be a presumption that a consenting co-mother is a legal parent. 2 The Human Rights and Equal Opportunity Commission s (HREOC) report entitled Same Sex Entitlements was released in May It highlighted some of the consequences of non- *An earlier version of this article was published in the Current Family law Journal (2009) 14 CFL See for example Gay and Lesbian Right Lobby, The Bride Wore Pink, Legal Recognition of Our Relationships, A Discussion Paper, February 1 994; Gay and Lesbian Right Lobby, And Then the Brides Changed Nappies, Final Report, April 2003; Gay and Lesbian Right Lobby, All Love is Equal Isn t It? The Recognition of Same-sex Relationships under Federal Law, Consultation Report, February New South Wales Law Reform Commission Review of the Property (Relationships) Act 1984 (NSW), Discussion Paper 44, April 2002, p.93. 2

3 recognition across a wide range of areas of law. The consequences are there not just for the adults but for the children whose family forms are unrecognised. The HREOC report recommended changes to a wide variety of laws. In many instances these changes could be achieved by amending the definition of de factos. Before the law reforms the only option for same sex couples would be to make an application to the court for shared parental responsibility. This involved either filing an application for consent orders or an application with the Federal Magistrates Court with supporting affidavits. Both options had obstacles. The application for consent orders is designed for an applicant and respondent whose relationship has broken down. In these cases the relationship subsists and they are properly joint applicants. Applicants faced problems filing the documents at the registry because there was no respondent. Initially registrars could make these orders in chambers but increasingly parties were required to attend court to make submissions to a judicial officer. The other option was to file an application and supporting affidavits with the Federal Magistrates Court. The biological parent and co-parent both filed affidavits. They would appear in court on the first day. Often orders would be made on that day. Both of these processes involved time and costs for imperfect solutions as parental responsibility order is more limited that legal recognition as a parent. Parental responsibility ends when a child is 18 and does not give the child inheritance rights. These types of applications arose before the courts comparatively rarely, so depending on the judicial officer determining the application it would be necessary to educate the judicial officer concerned. Mathers v Mathers [2008] FamCa 856 provides an example of the types of hoops samesex couples had to go through. Sometimes the court also wanted the donor to be joined as a party. Recently Riethmuller FM examined the legal position of the donor in some depth. The donor is not a parent. The Family Law Act does not impose significant responsibilities of a parent on a person unknown. A donor provides material based on the expectation which is provided under state laws that he will not have any obligations. Riethmuller FM found that as the donor is not a parent he is not a necessary party and there is no need to serve the donor with the application. 3 Numerous laws were reformed in 2008 at a state and federal level to address the discrimination of non-recognition of same-sex relationships. Some states reformed their laws well before Reforms which impacted on parenting included the following: 3 Baker v Landon [2010] FMCAfam 280 at paras 44 to 47. 3

4 The Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA) introduced s 6A into the Artificial Conception Act 1985 (WA) which addresses parentage presumptions for lesbian relationships. It also amended the Family Court Act 1997 (WA), the Births, Deaths and Marriages Registration Act (1998) WA by introducing gender neutral language The Law Reform (Gender, sexuality and De Facto Relationships) Act 2004 (NT) inserted s 5DA into the Status of Children Act 1978 (NT) dealing with presumptions of parentage for women in same sex relationships where a child is born as a result of a fertilisation procedure; The Parentage Act 2004 (ACT) came into effect on 22 March It deals with parentage presumptions and declaration, status of children and substitute parent agreements (surrogacy); The Assisted Reproductive Treatment Act 2008 (Vic) inserted ss 13 and 14 into the Status of Children Act 1974 (Vic) commencing on 1 January Section 13 states that a woman and her partner, if any, must receive counselling first; The Relationships (Miscellaneous Amendment) Bill 2009 (Tas) which inserted s10c into the Status of Children Act 1974 (Tas) regarding women in same sex relationships where a woman becomes pregnant as a result of a fertilisation procedure and inserted s 29 into the Adoption Act 1988 (Tas) dealing with a child born to a woman in a relationship with another woman as a result of a fertilisation procedure; The Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (NSW) amended s 14 of the Status of Children Act 1966 (NSW) to create a parentage presumption for the woman in a same-sex de facto relationship whose partner undergoes a fertilisation procedure, provided the woman consented. This amendment has retrospective application; Section 17 of the Births, Death and Marriages Registration Act 2008 (NSW) was also amended to allow the alteration of the register as a consequence of the amendment to the Status of Children Act. This enables same-sex couples to apply to have their child s birth certificate amended to reflect both mothers names; The Explanatory Memorandum to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws General Law Reform) Act 2008 (Cth) states that the amendments were required because differential treatment prevents same-sex couples from accessing 4

5 many of the benefits available to opposite-sex couples and relieves them of obligations. 4 Importantly, it goes on to state that the amendments are required to ensure functional recognition is given to children of same-sex relationships to ensure that these children are not disadvantaged because of their family structure. 5 In addition, in New South Wales there have been two major Parliamentary enquiries into altruistic surrogacy and same-sex adoption. Both reports have recommended that further law reform be undertaken. These are discussed separately below. Same-sex parenting reforms introduced by the Family Law Amendment (De Facto Matters and Other Measures) Act 2008 (Cth) (the Amending Act) have not been as well publicised as the amendments relating to the financial aspects of de facto relationship breakdown. The same-sex parenting amendments commenced on 21 November 2008, and primarily affect section 60H of the Family Law Act. They also introduce two entirely new sections in ss 60HA and 60HB. Section 60H has been amended to include reference to the other intended parent. Provided that the woman undergoing the artificial conception procedure and the other intended parent consented to the artificial conception procedure the child is a child of the woman and the other intended parent. This recognises the non-biological co-parent in lesbian couples. The amendment is retrospective. Consent does not have to be written. This complements the New South Wales reforms made by the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (NSW). This gives legal recognition to a greater number of non-biological parents but there will still be a number who will not fall within the definition because they were not in a de facto relationship at the requisite time. How important is it to be recognised as a parent under the Family Law Act? The term parent is not defined in the Family Law Act. The Oxford dictionary defines a parent as: noun 1 a father or mother. 2 an animal or plant from which younger ones are derived. 3 an organization or company which owns or controls a number of subsidiaries. 4 archaic a forefather or ancestor. 4 Same-Sex Relationships (Equal Treatment in Commonwealth Laws General Law Reform) Act 2008 (Cth), Explanatory Memorandum, p 2. 5 Explanatory Memorandum Same-Sex Relationships (Equal Treatment in Commonwealth Laws General Law Reform) Act 2008Page 3 5

6 verb be or act as a parent to. DERIVATIVES parental adjective parentally adverb parenthood noun. ORIGIN from Latin parere bring forth. 6 This definition is not particularly helpful in the family law context. There is no definition of parent or family in the Family Law Act, yet the reference to parent in particular can be so important. It would have been easy to include a definition of parent to refer to biology but the legislature has not done this. It makes sense for there not to be a definition of family because, after all, our understanding of what a family is has changed over the years and means different things to different cultures. Surely someone can be a psychological parent? Does a parent have to be a biological parent? Looking at it from a child s perspective does it matter? Family Court has stated on more than one occasion that, while parenthood is an important factor, there is no presumption in favour of a biological parent Jenni Millbank refers to co-mothers in lesbian families as intended and functioning parents largely unrecognised by law. 8 In other words, these women are psychological parents. Why can t this be covered by the definition (or lack of one) under the Family Law Act? Fiona Kelly makes the important point that the choice of language can include and exclude, acknowledge and make invisible. She also highlights that social science research suggests that the psychological relationship of parenthood should be understood from the point of view of the child. Biology is important but social or psychological attachments are of at least equal importance. 9 These arguments do not appear to have been raised before by the courts. The references to parent in the Family Law Act are sometimes inconsistent. The Family Law Act has long recognised that non-parents can apply for parenting orders There are some parenting provisions in the Family Law Act which refer only to parents whilst others refer to parents and other significant persons. Unfortunately these arguments have not had much success in the family courts. This argument was raised in Tobin v Tobin (1999) FLC in the context of a foster 6 Compact Oxford Dictionary accessed on 6 October Re Evelyn (1998) FLC ; Rice and Miller (1993) FLC Millbank J, Unlikely Fissures and Uneasy Resonances: Lesbian Co-mothers, Surrogate Parenthood and Fathers Rights 16(2) Feminist Legal Studies (2008)141 at Fiona Kelly Redefining Parenthood: Gay and Lesbian Families in the Family Court the Case of Re Patrick (2002) 16 AJFL 204 at S65C of the Family Law Act, 1975 (Cth) 6

7 parent being liable for child maintenance. 11 The argument was also unsuccessful in Simpson v Brockman [2010] FamCAFC 37. This case concerned same sex parents who were not able to take advantage of the new amendments to s60h. 12 The important sections are as follows: Section 60B is the objects section. It refers to a child having the benefit of both parents having a meaningful involvement in their life. 13 There are several other references to parents in that section and one reference to children having a right to spend time on a regular basis with their parents and other people significant to their care, welfare and development. 14 Section 60CC sets out how the court determines a child s best interests. It is divided into 2 primary considerations and 13 additional considerations. The first primary consideration refers to the benefit to the child of having a meaningful relationship with both parents. There is no mention of other significant persons. The other primary consideration concerns protecting children from abuse and violence. Many of the additional considerations refer to parents as well. Section 60CC(3)(d) talks about the effect of separation from either parent or any other person on a child. Section 60CC(3)(f) talks about the capacity of parents and other persons to provide for the needs of a child. Section s60cc(3)(b)(ii) talks about the child s relationship with other significant persons. The parental responsibility provisions make it clear that parental responsibility can be allocated to people who are not parents. 15 The presumption of equal shared parental responsibility does not apply to people who are not parents. 16 However, an order for equal shared parental responsibility can be made in favour of non-parents. Section 65DAC contemplates a parental responsibility order being made in favour of more than two people. The case of Flynn v Jaspar [2008] FMCAfam 106 concerned competing parenting applications between the non-biological co-mother and the biological mother. In the interim case before Sexton FM she referred to the applicant as the co-parent mother and the respondent as mother. 11 Tobin v Tobin (1999) FLC para 42 t Simpson v Brockman [2010] FamCAFC 37 at paras 41 to S60B(1) of the Family Law Act, 1975 (Cth) 14 S60B(2)(b) of the Family Law Act, 1975 (Cth). 15 S65DAC of the Family Law Act, 1975 (Cth) 16 S61DA of the Family Law Act, 1975 (Cth) 7

8 This reflects the reality of their respective roles. The parties had a joint parental responsibility order from a few years before. In the context of this case it did not matter whether s 60CC((1)(a) applied or not. The Federal Magistrate referred to it being clear on the authorities that the coparent mother was not a parent. She did not name those authorities. Murphy J discusses the interaction of these provisions in Dunstan v Jarrod (2009) 41 Fam LR 535; [2009] FamCA 480. Section 61DA contains the presumption for equal shared parental responsibility to apply to parents not others. Murphy J states that at first blush it appears that the Act gives no powers for non-parents to receive the benefit of an order for equal shared parental responsibility. He then goes on to say that it is not that simple as it is clear from s 64B that the definition of parenting orders includes the allocation of parental responsibility. 17 Section 64B(2)(d) contemplates parental responsibility being allocated to two or more people, which clearly means non-parents as well as parents. Section 65C enables non-parents to apply for parenting orders. What is clear is that an order for equal shared parental responsibility will be made as between a legal parent and a non-legal parent not by operation of the presumption, but rather by analysis of the factors in s 60CC which would support such a parenting order as an order which is in the best interests of the subject child/ren. The case of Mulvany v Lane (2009) 41 Fam LR 418 was a Full Court decision on appeal from a decision of a Federal Magistrate. The decision concerned an application by one party who found out he was not the biological father of a child he believed to be his own. The child aged 5 at the time of the hearing believed the husband was his father. The case demonstrated how the provisions can become confusing because of the inconsistent references to parents in the parenting provisions. The Full Court said that the Federal Magistrate was correct to find that he was not a parent but the Federal Magistrate went on to get confused when applying the various parenting provisions. The Federal Magistrate did not treat him as a father for the purposes of ss 60CC(2) and 61DA yet did treat him as a parent for the purpose of s 60CC(3). His approach was hard to understand. The Federal Magistrate found that the primary consideration of having a meaningful relationship with a parent only applied to the mother and found this to be a trump to the additional considerations. But this is an incorrect interpretation of s 60CC. Section 60CC(1) requires the court to consider both s 60CC(2) and s 60CC(3) without differentiation. Parliament did not use the word secondary but additional. If the Federal Magistrate s approach was correct then a 17 Dunstan v Jarrod (2009) 41 Fam LR 535; [2009] FamCA 480 at [74] and [75]. 8

9 non-parent would never be successful in having children live with them and would also render nugatory the full range of the intention of s 60B. The Full Court said that the Federal Magistrate was correct to find that he was not a parent but erred in the way he allowed that consideration to affect his reasoning. The Full Court also stated that it was unfortunate that the legislation does not provide a clearer interpretation. May and Thackary JJ noted that if the applicant was an adoptive parent or the biological father the court would have been obliged to consider the benefit to the child of a meaningful relationship with him. Why should it be any different when it was discovered he was not the biological father? They also stated that discussion about the status of the husband was unhelpful as it distracted from the central inquiry as to what was in the child s best interests. 18 This reasoning can be extended to the lesbian parenting cases. Professor Chisholm argues that s 60CC(2)(a) refers to the benefit to the child of a meaningful relationship with both parents not either parent so when there is only one parent this consideration does not apply. This issue was not raised on appeal so the Full Court did not explore it. 19 The reasoning behind these differences in the legislation is not clear. The Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) does not provide any assistance. 20 As the case of Keaton v Aldridge (2009) 223 FLR 158; [2009] FMCAfam 92 shows, there will not be an end to disputes about who is a parent. The arguments may now centre around whether or not there was consent and whether or not the parties were in a de facto relationship at the time of conception. In the interim decision counsel for the biological mother put much emphasis on the fact that the relationship between the adults had broken down completely and the biological mother s desire for the applicant to have no relationship with the child. 21 This is generally not a consideration in disputes between parents (and arguably should not be a consideration with respect to anyone with whom the child has an attachment). 22 Coakes FM determined the interim hearing and found it was not in the child s best interests to deny her a relationship with the 18 Mulvany v Lane (2009) 41 Fam LR 418 at paras 79 to Richard Chisholm, When a father turns out not to be, does the Act give priority to the (biological) mother? Mulvany v Lane, Australian Journal of Family Law (2010) 24 AJFL 128 at The Parliament of Australia, House of Representatives, Family Law Amendments (Shared Parental Responsibility) Bill 2005, Keaton v Aldridge (2009) 223 FLR 158; [2008] FMCAfam 939 at [39]. 22 It is only in the more extreme types of cases such as Re Andrew (1996) 132 FLR 118; 20 Fam LR 538; [1996] FLC where this might be a consideration. 9

10 applicant, which relationship had already been established. He found there was a detriment to the child to lose an adult who played a significant role in her life from her first years and of whom she has memory and knowledge. 23 This is consistent with the latest research with respect to attachment theory. 24 Pascoe CFM presided over the final hearing. Much of the focus of his judgment is as to whether or not the parties were in a de facto relationship at the time of conception. 25 Pascoe CFM made orders for Ms Keaton to spend time with the child but did not make a parental responsibility order in her favour. Jenni Millbank discusses the concept of the functional family which is based on shared intention and shared enterprise in planning a child and not on status. 26 She comments that there are an alarming number of cases where the biological mother denies the parental role of the co-mother. 27 The biological mother argues that, now that the co-mother is no longer a member of the household, she is no longer a parent. 28 With respect to Pascoe CFM s decision Jenni Millbank makes an important point about the way he interpreted the evidence about the shifting or negotiated understanding of shared parenting between the women as meaning there was no understanding between them and no meeting of minds. This shows no appreciation that lesbian couples, especially in the context of long standing legal non-recognition, that they could jointly conceive based on the understanding of their roles evolving over time or on a fixed understanding that the birth mother will have a greater parenting role. 29 Jenni Millbank also discussed comments by Thorpe J in an English case of Re G (No 2) [2006] EWCA Civ 372 where Thorpe LJ said [t]he question is who is a natural parent? In the [case law] all the judges spoke of the biological parent as the natural parent, but in the eyes of the child the natural parent may be a non-biological parent who, by virtue of long settled care, has become the child s psychological parent. Unfortunately this was a minority view in this case. Things can be simplified 23 Keaton v Aldridge (2009) 223 FLR 158; [2008] FMCAfam 939 at [58] and [59]. 24 Lodge P, Attachment Theory Conceptions and Misconceptions in the Family Law Context (seminar notes), draft only, (September 2009). 25 Keaton v Aldridge 223 FLR 158; [2009] FMCAfam Millbank, J, The Limits of Functional Family: Lesbian Mother Litigation in the Era of the Eternal Biological Family, (2008) 22(2) International Journal of Law, Policy and the Family 149 at Millbank, n 23 at Millbank, n 23 at Jenni Millbank De facto relationships, same-sex and surrogate parents: Exploring the scope and effects of the 2008 federal relationship reforms, Australian Journal of Family Law/(2009) 23 AJFL No 3, 160, at p

11 if considered from the perspective of the best interests of the child. For the child the important thing is who that child feels attached to. The child is not concerned about that person s biology. In Aldridge and Keaton [2009] FamCAFC 229 the Full Court dismissed the biological mother s appeal. The fundamental issue of the appeal is when is it appropriate or not appropriate for a person with no biological connection to a child to have a parenting order made in his or her favour with respect to that child. The Full Court stated that the intention of the amendments to s 60H was that children should have the same rights and protections to receive proper parenting from the biological parent and that parent s partner, including a same sex parent. It went on to raise concerns about the drafting of Part VII of the Family Law Act. It said that the question of whether or not the other intended parent, referred to in s60h, is a parent for the purposes of Part VII is not without some doubt. This is important for sections 60B(1) and (2) and 60CC(2) and (3). Consistent with statutory interpretation a purposive construction should be applied to the section to regard both the birth parent and the other intended parent as parents of the child but other provisions of the Act are inconsistent with this. The Full Court pointed out that the definition of parent was not amended when s60h was amended. 30 The applicant sought a declaration that she was a parent under s69va. As originally inserted that section was not intended as a provision to enable the declaration of parentage with respect to parties in a same sex relationship. Section 69 was introduced in It was intended that following the amendments to s60h who were children the subject of proceedings were to be treated the same regardless of the circumstances of conception. The aim of this provision was to ensure that these children received proper parenting from their biological parent and their parent s partner. The Full Court commented that it is not sure that the legislation has had this effect. 31 The mother argued that notwithstanding the threshold test, where there is no parental responsibility the court has to consider whether or not to make a parenting order at all. She also argued that the section 65C contains a hierarchy of importance of potential applicants. The Full Court disagreed Aldridge and Keaton [2009] FamCAFC 229 at para Aldridge and Keaton [2009] FamCAFC 229 at paras 19 to 22, 32 Aldridge and Keaton [2009] FamCAFC 229 at paras 22, 54 and

12 The Full Court said that the matters in 60B(2)(a) to (e) should be read conjunctively. Whilst there is an emphasis on parents it is also important that children spend time with people important to their care must also guide section 60CC(2) and (3). The presumption of equal shared parental responsibility applies between parents, not parents and others. There are also other provisions inserted in 2006 which only apply to parents. There is a lack of clarity with respect to the weighting of various sections in Part VII and in particular the weight that should be attached to a non-parent 33. The Full Court examined the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). The 2006 amendments to Part VII of the Family Law Act places a greater emphasis on the role of both parents. There is no suggestion of a particular order of provisions and weighting. In its present form of the Act there is flexibility and recognition and accommodation of new family forms. There will also be children not conceived with the consent of the other intended parent but who have effectively been treated as a child of the relationship of a same sex parent. In these cases the child s best interests remains the paramount consideration and not the circumstances of the child s conception and the gender of the child s parents. 34 It is clear that s60cc(3)(m) gives the court a broad opportunity to consider many diverse matters relevant to a child s welfare. The fact that no order for parental responsibility was made in the applicant s favour does not mean that no order for time or communication would be inevitable. The appellant s appeal was dismissed. An unreported decision of Snell and Bagley [2009] FMCAfam 1144 is another case that involved an application by someone who was not a parent under s60h who was seeking interim parenting orders. The applicant was in a same-sex relationship with the respondent. The applicant had lived in the same household as the mother and child for most of the child s life. The applicant was a significant carer for the child both during the relationship and after the parties separated until the respondent unilaterally suspended time and communication. The respondent strongly resisted any orders being made for time or communication. 33 Aldridge and Keaton [2009] FamCAFC 229 at para Aldridge and Keaton [2009] FamCAFC 229 at para

13 The respondent placed a lot of emphasis on the fact that the applicant did not have the legal status of parent and argued that the court should have a different emphasis or focus than when the contest is between legal parents. The applicant argued that the respondent s focus was about adult issues and not the best interests of the child, who was almost 4. McGuire FM referred to s60cc as having a number of guidelines or compulsory considerations. The respondent argued that because the applicant did not have the status of parent there was a stronger likelihood that no time would be ordered on a final basis but the federal magistrate thought this argument missed the point. It was also possible that if the court did not order time on an interim basis and a future court did order time there would be the additional consideration of a reintroduction of time. The child was not yet 4 and both adults had a relatively consistent presence in her life before and after separation. The respondent appealed this decision on several grounds. In her arguments she emphasised the fact that the objects section only refers to parents having a meaningful relationship with their child, not interested others. The respondent also criticised FM McGuire s statement about the common occurrence of conflict after separation. Warnick J sitting as a judge of the Full Court regarded this as common knowledge. See 144 of the Evidence Act 1995 (Cth). The respondent argued that the applicant s time should be minimised so as to maximise the time with the mother to ensure she has a meaningful relationship with her only parent. The respondent highlighted the fact that she did not plan to have a child with anyone else as partner, but the reality of what happened after the child was born was that she did involve the applicant including to the extent of giving the child the applicant s surname as one of her middle names. Warnick J also found that just because the final hearing was expedited did not mean that a more conservative parenting arrangement should have been followed. Warnick J did not find merit in any ground of the appeal. Section 60H is satisfied if the parties are in a de facto relationship on the day of the artificial conception procedure. No length of time is required before or after the procedure. 35 Surrogacy Section 60HB was inserted by the Amending Act and deals with children born under surrogacy arrangements. It states that if the court has made an order under a prescribed State or Territory 35 Baker v Landon [2010] FMCAfam

14 law to the effect that a child is the child of one or more persons, or each of one or more of the persons is a parent, then for the purposes of the Act the child is a child of each of those persons. In the case of Re Michael: Surrogacy Arrangements [2009] FamCA 691 Watts J had to deal with s 60HB and found it had unexpected consequences. The case concerned an application for leave to adopt a child who was born as a result of a family surrogacy arrangement. It is worthwhile explaining the facts. Sharon and Paul were married. Sharon had cervical cancer. Her eggs were harvested before she had treatment which made her infertile. Sharon s mother Lauren was in a de facto relationship with Clive. Lauren was implanted with an embryo which was produced using Paul s sperm. Watts J found that, at law, Lauren is Michael s mother and Clive is his father. Paul and Sharon want to adopt Michael. Section 60HB does not assist as there is no prescribed law in New South Wales which would apply here. Section 60H however does apply. Lauren consented to the procedure and Clive is presumed to have consented and is the other intended parent for the purpose of that section. Watts J pointed out that if section 60HB is enlivened by New South Wales law in the future section 60H and section 60HB could produce irreconcilable results. 36 Artificial conception procedure is defined in section 4 of the Family Law Act. It includes the implantation of an embryo into a woman s body and does not exclude this in the context of a surrogacy arrangement. Watts J found that the intention of s60hb was to give the providers of genetic material in a surrogacy arrangement the status of parents, provided this was consistent with the provisions of state law. Where there is no state law, the legislature did not intend for them to become parents. Consequently Watts J found that it did not matter that neither Lauren nor Clive intended to become parents. 37 Even though Paul was named on the birth certificate as Michael s father the presumption that Paul is the father because of this is rebutted because of the irrebuttable presumption in section 14 of the Status of Children Act. This is because irrebuttable presumptions prevail over rebuttable ones. 38 Watts J recommended that section 60H be amended to make it clear that it is subject to section 60HB to avoid this type of situation in the future. 39 The Standing Committee on Law and Justice s Report entitled Legislation on Altruistic Surrogacy in NSW, released May 2009, recommended amendments to the Assisted Reproductive Technology Act 36 Re Michael: Surrogacy Arrangements [2009] FamCA 691 at paragraphs 28 to Re Michael: Surrogacy Arrangements [2009] FamCA 691 at paragraph Re Michael: Surrogacy Arrangements [2009] FamCA 691 at paragraph Re Michael: Surrogacy Arrangements [2009] FamCA 691 at paragraph

15 2007 (NSW) to require parties seeking assisted reproductive technology treatment to obtain counselling and those entering into a surrogacy arrangement to obtain independent legal advice. 40 Significantly it also recommended that the New South Wales Government pursue legislation to provide a mechanism to transfer parentage and amendments to the birth certificate. 41 Adoption The New South Wales Standing Committee on Law and Justice recommended that same-sex adoption be allowed. 42 The majority of the committee preferred the research which favoured family functioning regardless of the parents gender or sexuality. 43 The Committee concluded that sexual orientation is not an indicator of parental fitness or ability. 44 The Gay and Lesbian Rights Lobby pointed out that the reforms introduced by both State and Federal governments were significant achievements with respect to presumptions of parentage but these reforms are limited in scope and only apply to children conceived as a result of assisted reproductive technology where there is consent at the time of conception. For those not covered by these reforms, the only option is adoption reform. 45 Adoption reforms would cover same-sex step-parents, children of a single parent with a same-sex partner and foster carers. 46 The Gay and Lesbian Rights Lobby recommended that there be a new second parent adoption, as the current lack of legal recognition of same-sex parents is discriminatory. 47 The National Children s and Youth Law Centre submitted that the practical aspects of legal recognition can be very important involving things such as signing passports, permission slips and so on but also identity. 48 The making of an order for parental responsibility in the Family Court or Federal Magistrates Court is limited to the period 40 The NSW Legislative Council, Standing Committee on Law and Justice, Legislation on Altruistic Surrogacy in NSW, May 2009, page xvii. 41 The NSW Legislative Council, Standing Committee on Law and Justice, Legislation on Altruistic Surrogacy in NSW, May 2009, page xviii. 42 The NSW Legislative Council, Standing Committee on Law and Justice, Adoption by Same Sex Couples: Final Report, July The NSW Legislative Council, Standing Committee on Law and Justice, Adoption by Same Sex Couples: Final Report, paragraph 4.86 page The NSW Legislative Council, Standing Committee on Law and Justice, Adoption by Same Sex Couples: Final Report, paragraph The NSW Legislative Council, Standing Committee on Law and Justice, Adoption by Same Sex Couples: Final Report, paragraph The NSW Legislative Council, Standing Committee on Law and Justice, Adoption by Same Sex Couples: Final Report, paragraph The NSW Legislative Council, Standing Committee on Law and Justice, Adoption by Same Sex Couples: Final Report, paragraph The NSW Legislative Council, Standing Committee on Law and Justice, Adoption by Same Sex Couples: Final Report, paragraph

16 until a child turns 18 and can be varied by a further court order. Adoption provides greater certainty. 49 Some states already recognise same-sex adoptions. Western Australia introduced amendments to the Adoption Act 1994 (WA) in 2002 allowing same-sex couples to adopt. The Adoption Act 1988 (Tas) was amended in January 2004 to allow persons in a marriage or significant relationship to adopt, however a person who is married on in a significant relationship cannot adopt as a single person. 50 Section 14 of the Adoption Act 1993 (ACT) was amended by the Parentage Act 2004 (ACT) to enable opposite or same-sex couples who have been in a domestic relationship for at least 3 years to adopt. The Victorian Law Reform Commission recommended that the Adoption Act (1984) (Vic) be amended to allow same-sex couples to adopt but s 11 still only refers to a man and a woman. Section 12 of the Adoption Act 1988 (SA) restricts adoption to a man and a woman who have been married or in a de fact relationship for at least 5 years. Individuals can only adopt in special circumstances. Section 13 of the Adoption of Children Act 1994 (NT) refers to a man and woman being married for at least 2 years being able to adopt or a man and woman in a recognised traditional Aboriginal marriage. Section 14 provides for a single person to adopt in limited circumstances. Section12 Adoption of Children Act 1994 (Qld) only allows a husband and wife to adopt jointly. A single person may adopt in limited circumstances. Child Support One of the consequences of the reforms introduced by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws General Law Reform) Act 2008 (Cth) and the Family Law Amendment (De Facto Matters and Other Measures) Act 2008 (Cth) is that from 1 July 2009 separated same-sex parents can be liable for child support. Couples who separated before 1 July 2009 can apply for an assessment but the application for assessment can only apply from 1 July There will be some couples who have made alternate arrangements for support because the child support scheme did not apply to them. Previously if 49 The NSW Legislative Council, Standing Committee on Law and Justice, Adoption by Same Sex Couples: Final Report, paragraph Adoption Act 1988 (Tas) s Victorian Law Reform Commission, Assisted Reproductive Technology Adoption: Final Report,

17 the parties could not agree on a private arrangement the only recourse was to make an application to the Supreme Court for equitable relief. 52 Conclusion Even with all the same-sex reforms there will still be some women who will be unable to establish that they are legal parents. We will continue to see cases like Keaton v Aldridge [2009] FamCAFC 229 It may be well and good for a biological parent to argue that her partner is only a parent for the duration of the relationship, but this ignores the child s experience. Given that the child s interests are paramount, this should be the focus. Same-sex and surrogate families are arguably about intention over and above biology when they are intact. However, when these relationships break down, biology is still an important factor but too great an emphasis on biology ignores the reality of how these families were formed and how these families operated before the family broke down. Most importantly, it threatens to overshadow the importance of a child s relationship with his or her family, no matter how constituted. These decisions are promising for children of same-sex families where both partners do not fall within the legal definition of parenting because they recognise the reality of children having a connection with both adults. These decisions bring the notion of parenthood into focus and also highlight some ongoing problems with the wording of some of the provisions of Part VII of the Family Law Act. 52 See for example W v G (1996) 20 Fam LR 49 17

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