Report 113 (2006) - Relationships - Law Reform Commission : Lawlink NSW

Legal parent means a biological, adoptive or presumptive parent of a child.

Legal child means a biological, adoptive or presumptive child of an adult.

Functional parent means a person who is responsible for the day-to-day care and long-term welfare of a child of whom he or she is not a biological, adoptive or presumptive parent.

Functional child means a child who has a relationship with an adult as if that adult were his or her parent, but who is not the biological, adoptive or presumptive child of that adult.

Presumptive parent means an adult who is presumed to be a legal parent of a child, pursuant to s 14 of the Status of Children Act 1996 (NSW), but who is not the biological or adoptive parent of that child.

Presumptive child means a child who is the legal child of an adult, who is presumed to be the legal parent of the child, pursuant to s 14 of the Status of Children Act 1996 (NSW), but who is not the biological or adoptive parent of that child.

Birth mother means a woman who conceives a child through artificial insemination, with the consent of her partner.

Co-mother means a woman who consents to the artificial insemination of her female partner, with the intention of being a parent to the child.

Lesbian step-parent means the female partner of a child’s legal mother, who is a functional parent of the child.

Gay step-parent means the male partner of a child’s legal father, who is a functional parent of the child.

5.2 Our choice of terminology is designed to distinguish between categories of relationships that may attract different legal and practical considerations. We recognise that this terminology may not accord with the language used by adults and children in same sex families.¹

5.3 In Australia, increasing numbers of children are being raised outside the traditional heterosexual nuclear family model.² Children are now living in a diverse variety of family forms, including lesbian and gay families.³ Within these diverse family forms is an equally diverse range of parenting arrangements.⁴ However, these developments in family structures have not been accompanied by equivalent legal developments. As a result, our current laws do not fully recognise the reality of many children’s lives or meet the practical needs of many families.

5.4 A key deficiency in the law is its limited recognition of the relationship between a child and an adult who acts as a parent, but who is not a legal parent. The Commission refers to this type of relationship as a functional parent/child relationship. In its Inquiry into De Facto Relationships Legislation, the Legislative Council’s Standing Committee on Social Issues (“the Social Issues Committee”) noted that limited legal recognition of the functional parent/child relationship has the potential to disadvantage the children of those in non-traditional relationships.⁵ The concerns of the Social Issues Committee are widely shared. On various occasions, the Courts have highlighted the need for the law to reflect developments in the nature of parenting.⁶ As far back as 1996, Justice Fogarty observed that:

5.7 In accordance with the Social Issues Committee’s recommendation, and in light of the anticipated focus of the Property (Relationships) Act 1984 (NSW) (“the PRA”) on same sex relationships,¹¹ the Commission’s consideration of the extent of legal recognition of functional parent/child relationships is confined to children in families with same sex partners, and the specific legal and practical difficulties encountered by adults and children in such families.

5.8 In the context of same sex families, there are two situations in which the functional parent/child relationship principally arises:

The legal practicalities of raising a “functional child” in a same sex family

5.10 From the perspective of a functional parent, the impact of non-recognition is felt even before the child is born. Under the Industrial Relations Act 1996 (NSW), certain employees may be entitled to parental leave in connection with the birth of a child.¹³ Maternity leave may be available to a female employee who is pregnant, while paternity leave may be taken by a male employee in connection with the birth of his child. A male employee may also take paternity leave in connection with his partner’s pregnancy, even if he is not the biological father.¹⁴ There is no equivalent scope for a female employee to take maternity leave in connection with her partner’s pregnancy. Accordingly, a co-mother is not entitled to take parental leave.¹⁵

5.11 The effects of non-recognition continue to be felt by a child and his or her functional parent in their day-to-day lives. Unless or until a functional parent obtains a parenting order,¹⁶ he or she will have no legal status to make decisions about a child’s life. For example, a co-mother who has not obtained a parenting order cannot provide consent to a doctor providing medical treatment.¹⁷ Similarly, unless he obtains a parenting order, a gay step-parent cannot provide a child-care centre or school with valid permission for matters concerning his step-child. Overseas travel is a further area where a functional parent may encounter practical difficulties.¹⁸ Our consultations with the gay and lesbian community revealed that these day-to-day practical limitations are a significant concern for same sex families.¹⁹

5.12 The consequences of non-recognition are particularly acute where a legal parent dies.²⁰ For example, even where there is a surviving co-mother who has cared for a child for 15 years, the child will not automatically continue to live with and be cared for by her. While the birth mother could appoint the co-mother as a testamentary guardian, the Court has the ability to alter guardianship appointments as it thinks fit.²¹ The lack of certainty that a child would continue to live with his or her co-mother, should his or her birth mother die, was highlighted as a matter of great emotional stress by participants in our focus groups.²²

5.13 Non-recognition may also place a child at a disadvantage where a functional parent dies. Should a functional parent die without leaving a valid will, the child has no automatic entitlement to inherit any part of the estate. The Wills, Probate and Administration Act 1898 (NSW) addresses intestacy by establishing a hierarchy of people who will inherit the estate. Legal children are placed near the top of that hierarchy, while functional children are omitted from the list.²³ The effect of this omission is that members of the statutory hierarchy, such as an aunt or uncle to whom the deceased person may not have had a close relationship, may automatically inherit the estate, while a functional child who lived with the deceased for a number of years and was, in fact, dependent upon the deceased, has no automatic entitlement.²⁴

5.14 The practical problems which confront both the adult and child in a functional parent/child relationship suggest two possible areas for reform. The first involves consideration of the legal rights and responsibilities which should arise out of the functional parent/child relationship. Given our terms of reference, we focus our consideration of reform in this area to the legal rights arising from the PRA. The second possible area for reform involves consideration of the scope for functional parents to acquire legal parental status. In this Chapter, the Commission discusses, and makes recommendation for reform, in respect of both areas.

5.15 As we noted before,²⁵ given that a functional parent currently has no legal status in respect of his or her functional child, there are very few legal rights and obligations imposed on their relationship. Where the law does afford any rights to this type of relationship, it does so in very specific and limited situations, predominantly in the context of compensation and payment of damages to a child to whom an injured or deceased person stood in loco parentis.²⁶

5.16 The PRA potentially provides some recognition of the functional parent/child relationship. The two key areas where a functional parent/child relationship may have legal consequences under the PRA are in respect of:

5.18 In deciding whether or not to make an order adjusting parties’ interests in property, the Court is required to consider a range of factors. Under the current law, the main consideration for the Court is the contributions that the parties have made. Under the Commission’s recommendation for reform, the parties’ contributions remain a primary consideration in the adjustment process.²⁹ Consideration of the parties’ contributions include consideration of their contributions to the welfare of a “child of the parties” or of a child accepted into the household of the parties.³⁰

5.19 The PRA provides for a very limited right of maintenance.³¹ One of the two bases on which the Court may make an order for maintenance is that the applicant is unable to support himself or herself because he or she has the care and control of a “child of the parties”, or a child of the respondent, where the child is under the age of 12 years or, if the child has a physical or mental disability, under the age of 16 years, at the time of the application.³² Under the Commission’s Recommendation 32, that age limit will be changed to 18 years for all children, whether or not they have a disability.

5.20 In general, a court cannot make an order dividing up property, or awarding maintenance, unless the parties to the domestic relationship have lived together for at least two years.³³ Under the Commission’s Recommendation 24, that general rule will be changed to a requirement that the parties’ relationship have existed for at least two years. One way of circumventing this time limit, both as it currently stands and under the Commission’s recommendation, is if there is a “child of the parties”, or the applicant has the care and control of a child of the respondent, and failure to make the adjustment order would result in serious injustice to the applicant.³⁴ Where these conditions are met, a court can make an order adjusting the parties’ property interests even if the parties have lived together for less than two years, or, under the Commission’s recommendation, if their relationship has existed for less than two years.

5.21 There are a limited number of other Acts which adopt the PRA’s notion of a “child of the parties to a domestic relationship”, in order to make provision for certain legal rights. To the extent that that term recognises a functional child as a child of the parties, then the rights and responsibilities arising from the functional parent/child relationship are recognised in these pieces of legislation.³⁵

5.22 The first of these Acts is the Family Provision Act 1982 (NSW), which enables “eligible” persons to apply for a share or a greater share of the estate of a deceased person. Eligible persons may be entitled to provision from an estate if the share they received was inadequate for their proper maintenance, education and advancement in life.³⁶ One of the categories of eligible persons is a “child of the deceased person or, if the deceased person was, at the time of his or her death, a party to a domestic relationship, a person who is, for the purposes of the Property (Relationships) Act 1984, a child of that relationship”.³⁷

5.23 A child of the parties to a domestic relationship is included in the definition of “child” for the purposes of the protective trust provision of the Trustee Act 1925 (NSW).³⁸ Likewise, the Coroners Act 1980 (NSW) includes a child of the parties to a domestic relationship in the definition of “relative”.³⁹

5.24‘ It is obvious that the extent to which the PRA, and related legislation, recognise the functional parent/child relationship depends on the extent to which they recognise a “child of the parties” as including a functional child. Section 5(3)(d) of the PRA defines a “child of the parties to a domestic relationship” to include “a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998)”.⁴⁰ “Parental responsibility” is, in turn, defined in the Children and Young Persons (Care and Protection) Act as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children”.⁴¹

5.25 It is unclear precisely in which circumstances a child in a functional parent/child relationship will be recognised as “a child of the parties to a domestic relationship”. The uncertainty lies in whether a functional parent is able to possess “all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children” in the absence of any legal parental status in respect of the child, or any court order, such as a parenting order,⁴² conferring parental responsibility.

5.26 In the financial adjustment provisions of the PRA, a distinction is drawn between a situation where there is a child of the parties and a situation where the applicant has the care and control of a child of the respondent.⁴³ This distinction suggests that something more than acting as a parent is required to trigger s 5(3)(d) of that Act. However, comments by the then Attorney General, the Hon JW Shaw, in his Second Reading Speech, conversely suggest that a wider, functional approach should be taken to the requirement in s 5(3)(d).⁴⁴

5.27 In DP 44, the Commission concluded that the scope of s 5(3)(d) of the PRA is unclear. We proposed that the subsection be clarified in favour of a broad definition of the term, “child of the parties”, to make it clear that it included a child in respect of whom one of the parties was a functional parent with no legal connection to the child, not even the grant of a parenting order.⁴⁵ The basis of this view was that a narrow interpretation, requiring some form of legal status in respect of the child, would unnecessarily limit the scope of the PRA and that of the other statutes into which the s 5(3)(d) definition carries.

5.28 The practical effect of such reform of the PRA would be that it would be clear that a lesbian co-mother and a step-parent in a same sex family could:

5.29 We received eight submissions regarding s 5(3)(d) of the PRA. Two submissions expressed the view that a parenting order is an essential feature of a child being a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998 (NSW)).⁴⁶ The basis of both submissions was that parental responsibility is an inherently legal concept, involving legal powers. As such, it is not something that can be acquired solely through a functional parent/child relationship. One submission expressed the contrary view, arguing that there is nothing to suggest that a parenting order is necessary.⁴⁷ The remaining five submissions did not comment on the interpretation of s 5(3)(d) in its present form.⁴⁸

5.30 Five submissions considered that, irrespective of the current meaning of s 5(3)(d), a parenting order should not be necessary for a child to be recognised as “a child of the parties to a domestic relationship” in the context of functional parenting.⁴⁹ The judges of the Equity Division of the Supreme Court considered that, as the exercise of (functional) parental responsibility will affect the factual matrix in respect of which financial adjustment under the PRA will be made, it is sensible to take a wide approach in defining “a child of the parties to a domestic relationship”.⁵⁰

5.31 Three of the submissions that supported a wide interpretation nevertheless considered that the amendment to s 5(3)(d), proposed in DP 44,⁵¹ would be an inappropriate or ineffective means of achieving the policy objective.⁵² The objections centred on the legal implication of retaining reference to “parental responsibility” and the Children and Young Persons (Care and Protection) Act 1998. Rather than using the current wording as the basis of an amended definition, the submissions called for a fresh approach. Professor Patrick Parkinson and the Women’s Legal Resources Centre suggested that the language of the Family Law Act 1975 (Cth) (“the FLA”) could be a useful starting point.⁵³

5.32 Two submissions objected to the proposed amendment. The Law Society of New South Wales opposed the proposed amendment as the contribution of a functional parent, who does not have a parenting order, is recognised by s 20(1)(b) of the PRA.⁵⁴ New South Wales Young Lawyers considered that amendment could lead to a biological parent being excluded from the parenting role, without having the opportunity to challenge the recognition of a functional parent.⁵⁵

5.33 In the Commission’s view, there is no compelling justification for requiring any legal connection, including the existence of a parenting order, as an essential feature of the definition of “child of the parties” under s 5(3)(d). For this reason, we have recommended that s 5(3)(d) of the PRA be amended to include the notion of a functional child within its definition of “child of the parties”. Our recommendation omits any reference to “parental responsibility” as defined in the Children and Young Persons (Care and Protection) Act, since that Act arguably requires some form of legal recognition of parental status. According to our recommended amendments to s 5(3)(d), such legal recognition would not be a prerequisite to eligibility as a child of the parties.

5.34 Recognising a functional child as “a child of the parties to a domestic relationship” does not detract from the rights and responsibilities of a non-resident legal parent. Rather, the core effect of recognition is to add to the ways in which the financial needs of the child can be met. It can only be in the best interests of the child to allow for greater scope for those who have exercised the responsibilities of a parent to continue to meet those responsibilities, following the breakdown of a de facto relationship.

5.35 At the moment, there is no way for functional parents in same sex families to acquire legal parental status: same sex partners cannot legally adopt, nor, in the case of lesbian co-mothers whose partners are artificially inseminated, are they presumed to be legal parents. At the very most, they can apply for a parenting order under the FLA as a limited form of recognition of their role as parent. Given that functional parents in same sex families currently have such limited means available to them of acquiring any form of legal parental status, it is important that the PRA be capable of recognising their rights and responsibilities in respect of their (functional) children by not requiring any legal connection between the adult and child.

5.36 In the remainder of this Chapter, the Commission discusses and makes recommendations to allow for functional parents in same sex families to acquire, or be presumed to have, legal parental status through adoption and presumption of parentage. If these recommendations are implemented, then it may be thought that the arguments in favour of a broad definition of “child of the parties” become less compelling. We do not agree. Regardless of whether Recommendations 18, 19, and 21, concerning adoption and presumption of parentage, are implemented, it is desirable to include Recommendation 17 for two reasons. First, if Recommendations 18, 19, and 21 are not implemented, a broad definition of “child of the parties” is necessary because of the very limited scope that will continue to exist for functional parents to acquire any legal status. Secondly, even if Recommendations 18, 19, and 21 are implemented, it is desirable for the PRA to include a broad definition of the term, “child of the parties” to include situations where functional parents choose not to acquire legal parental status. Such situations will essentially cover step-parents in same sex families who choose not to adopt their step-children, but who still exercise responsibility over them. The justifications for possibly requiring step-parents to pay child maintenance are discussed more fully at the end of this Chapter.⁵⁶ For the moment, we reiterate that it can only be in the best interests of the child to allow for recognition of all those who have exercised responsibility over that child, in order to ensure that his or her financial needs are met. Whether or not the Court imposes financial responsibilities on a step-parent with no legal connection to a child will depend on the particular circumstances of the individual case. We concede that this position may not necessarily accord with the position that will be taken under federal legislation in respect of step-parents in opposite sex de facto families. It is not known whether, once the referral of powers is taken up, federal legislation will make similar provision for step-parents who do not adopt their step-children to be liable for an adjustment of property or an award of maintenance in their partners’ favour to accommodate the children’s needs. While we do not know what position the Commonwealth will take in this matter, we consider that our position best serves the interests of the child.

5.37 This section discusses the possibility of reform to the ways in which functional parents in same sex families can acquire recognition as legal parents. In opposite sex families, parents who bear no biological connection with their children may acquire status as their legal parents through adoption, or through a presumption of parentage. Thus, in the case of a step-parent in an opposite sex family, he or she can legally adopt the step-child once certain criteria are met.⁵⁷ In the case of a male partner whose female partner has been artificially inseminated, he is generally presumed to be the child’s legal parent.⁵⁸ Neither of these options is currently available to people in same sex relationships. At the most, they can apply for some legal recognition of their parental role through a parenting order.

5.38 The core principle regarding the care and control of a child is that each of the child’s parents⁵⁹ has legal responsibility for the child.⁶⁰ This legal responsibility is termed “parental responsibility”.⁶¹ However, any person concerned with the child’s care, welfare or development⁶² can apply to the Family Court to have this altered by way of a parenting order.⁶³ Parenting orders deal with aspects of parental responsibility such as who a child can live with,⁶⁴ who has maintenance obligations⁶⁵ and who is to be responsible for the day-to-day care of the child.⁶⁶

5.39 Parenting orders are a way of conferring parental responsibility, or aspects of it, on a person who would not otherwise have any legal connection with a child.⁶⁷ They therefore provide a way in which a functional parent can establish a legal relationship with a child. For example, a birth mother and co-mother could apply for a joint parenting order and thereby acquire legal recognition of a parental relationship between the co-mother and child.⁶⁸ Similarly, a legal father and his male partner could seek a joint parenting order.⁶⁹ Alternatively, a parenting order could be used to provide legal recognition of multi-parent families, with a known donor and a co-mother having orders that deal with issues such as contact and residence.⁷⁰

5.40 While parenting orders give legal recognition to the relationship between a functional parent and a child, there are some limitations on their efficacy for this purpose. First, a parenting order ceases to have effect once the child reaches 18 years of age, marries or enters into a de facto relationship.⁷¹ Accordingly, these orders do not create an enduring legal parent/child relationship. Secondly, a court will not necessarily grant a desired parenting order. In deciding whether to make a parenting order, a court must regard the best interests of the child as the paramount consideration⁷² and could potentially conclude that making an order was not in the child’s best interest. During our consultations with the gay and lesbian communities, the concern was expressed that magistrates’ assessment of the child’s best interests may be affected by homophobia.⁷³ Thirdly, parenting orders do not affect significant areas of the law, such as intestacy, and therefore do not equate to legal parental status, even while the order is in force.

5.41 Additional concerns about parenting orders, which were identified in our community consultations, were the potential expense⁷⁴ and the inconvenience of always having to carry the order on one’s person as a functional parent cannot always anticipate when his or her status will be questioned.⁷⁵ We were also advised that the process of seeking an order can be highly stressful, as people are concerned about potential homophobia within the legal system.⁷⁶ This same concern can prompt people to avoid seeking an order altogether.⁷⁷ Some focus group participants, however, reported positive experiences with the parenting order process.⁷⁸

5.42 One way in which a lesbian couple may have a child together is through the use of artificially inseminated donor sperm. Indeed, where a lesbian couple is raising a child, the child is increasingly likely to have been conceived in the context of that relationship.⁷⁹

Current law regarding children who are conceived through artificial insemination

5.43 The legal parentage of children who are conceived through artificial insemination is affected by two irrebuttable presumptions:

5.45 While the presumptions may facilitate parenting by couples in opposite sex relationships who have a child using donor sperm, they do not take into account the existence of couples in same sex relationships, who exercise the same choice. This means that where a child is conceived in the context of a lesbian relationship, the presumption that the sperm donor is not the child’s legal father fails to be accompanied by a presumption that the mother’s partner is the child’s legal parent. The result of this failure is that children who are conceived in the context of a lesbian relationship are denied a second legal parent, when such a parent is available. In the eyes of the law, the co-mother is a complete stranger to the child, other than in those limited areas where the functional parent/child relationship is recognised.

5.46 The difficulties posed by current presumptions of parentage for non-traditional families were noted in the recent report of the statutory review of the Status of Children Act 1996 (NSW):⁸⁷

5.48 In DP 44, the Commission asked whether it is appropriate to amend the parentage presumptions, so that the consenting female partner of a woman who conceives a child through artificial insemination is presumed to be the legal parent of the child.⁹⁰

5.49 Seven submissions expressly addressed this question.⁹¹ Six of these submissions supported applying the presumption of parentage to female partners, primarily on the basis that there was no justification for restricting its applicability to male partners. The remaining submission stated that the relationship between a co-mother and her child should not be a matter that changes from State to State and that there should be a review of the relevant FLA provisions.⁹²

5.50 In supporting amendment to the Status of Children Act 1996 (NSW), the Anti-Discrimination Board stated that children who are born to a lesbian couple as a result of a fertilisation procedure suffer clear legal disadvantage. The Board submitted that removal of this disadvantage, through amendment, would be consistent both with the Anti-Discrimination Act 1977 (NSW) and with the purpose of the Status of Children Act 1996 (NSW). It further submitted that amendment would ensure clarity in the relationship between the child and his or her co-mother.⁹³

5.51 The Gay and Lesbian Rights Lobby advised that in consultations on parenting reforms, lesbian mothers and co-mothers had expressed universal support for amendment.⁹⁴ There was likewise unanimous support in the focus groups for amending the parenting presumption.⁹⁵ Application of the presumption was considered by the Lobby and the focus group participants to be consistent with the intentions of the women, as well as with their actual experiences of parenting. Widespread support was also expressed in the Lobby’s consultations with lawyers and policy workers, who supported the simplicity, equity and breadth of coverage of an amended presumption. Focus group participants highlighted similar benefits.⁹⁶

5.52 The Lobby itself submitted that co-mothers should be presumed to be the legal parents of their children through a simple amendment to make the relevant provisions of the Status of Children Act 1996 (NSW) gender-neutral. While this amendment would have the same effect as allowing co-mothers to adopt their children, the Lobby submitted that the parentage presumption would be far cheaper and easier to use. It also submitted that amendment to the Status of Children Act 1996 (NSW) should have retrospective effect so that legal parental status was available to existing co-mothers.⁹⁷

5.53 Several jurisdictions have considered, or are currently considering, the question of whether co-mothers should be presumptive legal parents.

5.54 Western Australia was the first Australian jurisdiction to introduce a legislative response to the issues raised by lesbian parenting. In 2002, the State enacted a new section of the Artificial Conception Act 1985 (WA), which provides that where a woman who is in a de facto relationship with another woman undergoes, with the consent of her partner,⁹⁸ an artificial fertilisation procedure as a result of which she becomes pregnant, her partner is presumed to be a parent of the unborn child and is a parent of any child born as a result of the pregnancy.⁹⁹ This section was accompanied by a consequential amendment to the Births, Deaths and Marriages Registration Act 1998 (WA) to enable the presumed parent to register the child’s name and to be named on the birth certificate as the other parent.¹⁰⁰ As at 5 April 2004, ten new births have been registered to record two mothers and another five existing birth registrations have been updated to identify another woman as the child’s second parent.¹⁰¹

5.55 More recently, similar legislative amendment has occurred in the Australian Capital Territory and the Northern Territory.¹⁰² The Parentage Act 2004 (ACT) extends the parentage presumptions so that same sex domestic partners, as well as opposite sex domestic partners, are presumed to be parents when a child is born within a domestic partnership,¹⁰³ including where that child is conceived through donor insemination.¹⁰⁴ The Parentage Act 2004 (ACT) expressly states that the presumptions cannot operate so as to provide a child with more than two parents at any one time.¹⁰⁵ Under the Status of Children Act (NT), the relevant provisions mirror those found in the Western Australian Act.¹⁰⁶

5.56 New Zealand,¹⁰⁷ Canada and South Africa extend the parentage presumptions to the same sex partner of the birth mother. In Quebec, if a couple is joined in a civil union, the female partner of the birth mother is presumed to be the other parent of the child.¹⁰⁸ A 2001 decision of the British Columbia Human Rights Tribunal ordered that BC Vital Statistics make it possible for a same sex non-biological mother or father to be listed as a “parent” on a child’s birth certificate.¹⁰⁹ Similarly, in South Africa, the Constitutional Court ordered that the equivalent of s 14 of the Status of Children Act 1996 (NSW) be read in a gender-neutral manner, enabling a same sex partner to be presumed to be a parent.¹¹⁰ Most recently, it has been reported that the Californian Supreme Court has found that both partners in a same sex relationship are legal parents when they have children using artificial insemination procedures and raise them together. Both parents are consequently entitled to all the rights and responsibilities of parenthood, including custody and liability to pay child support.¹¹¹

5.57 In the Commission’s view, there is no justification for excluding co-mothers from the Status of Children Act 1996 (NSW) parentage presumptions. The legal disadvantage suffered by children who are born within a lesbian relationship and their co-mothers constitutes a compelling justification for prompt legislative amendment. In addition, the emotional repercussions of non-recognition of the parent/child relationships should not be ignored. The focus groups revealed that non-recognition and the attendant insecurity are a source of daily stress for many co-mothers.¹¹² We consider that extending presumptive parental status is the most simple and effective means of removing this legal and emotional disadvantage. In addition, extension of the presumption removes the difference of treatment between opposite sex and same sex couples. Section 14 of the Status of Children Act 1996 (NSW) should be reworded so that references to a pregnant woman’s partner be made in gender neutral terms. Thus, instead of “husband” in s 14(1), the term “partner”, or “spouse” could be used, and could be subsequently defined in s 14(6) to extend to a de facto partner as that term is defined in the PRA. Amendments to this effect would allow co-mothers who have consented to a fertilisation procedure to be presumed to be the legal parent of any child born as a result of that procedure. As with male partners, the lesbian partner’s consent would be presumed, but that presumption would be rebuttable by proof on the balance of probabilities. In practice, in situations where lesbian partners have used informal fertilisation methods, rather than gone through official channels, it may be difficult to rebut a presumption of consent, if there is very little or no evidence to corroborate the party’s version of events. However, this will ultimately be a matter for the Courts to determine according to the usual rules of evidence.

5.58 The Commission agrees with the approach taken in the ACT that the presumption of parentage for co-mothers should have retrospective effect. Rather than requiring existing co-mothers to go through an adoption procedure, it is preferable that they be able to demonstrate that they are a person to whom the presumption applies and apply to have the child’s birth certificate amended. As with the ACT legislation, retrospective application of the presumption should not, however, affect the vesting of an interest in property that happened before the commencement of the recommended amendments.

5.59 Cases such as Re Patrick,¹¹³ as well as a growing body of literature, have highlighted the need to give fresh consideration to how the law deals with gamete donation.¹¹⁴ The status of known donors has been raised as a matter meriting particular attention.

5.60 Re Patrick concerned an application by a known sperm donor for contact with the child who was artificially conceived, using his sperm. The child, Patrick, was being raised by his birth mother and co-mother. Following Patrick’s conception, disagreement emerged as to the role of the donor in the child’s life. The disagreement continued for over two years and culminated in a bitterly contested application for contact. As Justice Guest observed, the case starkly demonstrated the complexities surrounding donor insemination. It further illustrated the law’s inability to deal with the biological and social reality of children such as Patrick, who are conceived with the assistance of a known donor.¹¹⁵

5.61 Against the background of Re Patrick and the wider debate, two submissions raised issues concerning known donors.¹¹⁶ While the Commission appreciates that the legal status of known donors is relevant to the matters addressed in this review, we consider that this area extends beyond our terms of reference. Fundamental questions are involved that relate not only to non-traditional families but also to families who fit the “traditional” model through the operation of the Status of Children Act 1996 (NSW). Further, the issues extend beyond the question of how functional parent/child relationships should be treated by the law. They are part of a wider debate about gamete donation, which includes issues such as the child’s right to know their genetic identity.

5.62 Although we do not consider it appropriate to address the status of known donors in detail in this Report, the Commission believes that there should be a review of the current law in this area. As the issues involved in known sperm donation are not, as a matter of principle, restricted to same sex parenting, we consider that a review of this area should encompass both same sex and opposite sex parenting. Pertinent issues that could be considered in the course of such a review include:

5.63 Adoption is a way of creating a legal parent/child relationship between an adult and a child who have neither a biological nor a presumptive parent/child relationship. While adoption can take a variety of forms, in the context of this review, the Commission’s discussion is limited to step-parent adoption. Accordingly, this Report does not address the wider issue of whether same sex couples should be eligible to adopt. The Commission has already given detailed consideration to this wider issue in its report on the Adoption of Children Act 1965 (NSW). In that report, we recommended that same sex couples be able to adopt a child jointly, on the basis that there is no good reason for the law to exclude people from seeking to adopt solely on the basis of their sexual orientation, if they are otherwise suitable as adoptive parents.¹¹⁷ We reaffirm this position. If prospective adopting parents are able to show that they can promote the bests interests of the child in question, they should not be prevented from doing so simply because of assumptions relating to their sexual orientation. This broader issue may be addressed in the statutory review of the Adoption Act 2000 (NSW) which is currently taking place.¹¹⁸

5.64 Under the Adoption Act 2000 (NSW), a “step-parent” is eligible to adopt the legal child of his or her opposite sex partner.¹¹⁸ “Step-parent” is defined in the Act as a person who:

5.66 An adoption order can be made in favour of a heterosexual step-parent of a child if:

5.68 In DP 44, the Commission asked whether the step-parent adoption provisions should be amended to include lesbian and gay step-parents.¹²⁵ We received eight submissions on this issue, of which six supported amendment of the relevant legislation.¹²⁶ A common reason for supporting amendment was the lack of any reason to exclude lesbian and gay individuals from the scope of the step-parent adoption provisions. One submission objected to amendment on the basis that it is most desirable that children be raised by their biological parents.¹²⁷ It did not address the situation where only one biological parent is available to raise a child. The Victorian Bar did not express a view on the desirability of amendment but questioned whether revisiting the issue in the context of this review takes the matter any further than the recommendations made in the Commission’s review of the Adoption of Children Act 1965 (NSW) in 1997.¹²⁸

5.69 Over the past decade, a clear trend has emerged in favour of extending eligibility for step-parent adoption to gay and lesbian individuals. A number of jurisdictions now permit lesbian and gay individuals to adopt their partner’s children. The first Australian State or Territory to reform the law was Western Australia. Under the Adoption Act 1994 (WA), lesbian and gay individuals are eligible to adopt a child in the capacity of step-parent.¹²⁹ Tasmania¹³⁰ and the Australian Capital Territory¹³¹ have also amended their adoption legislation, with similar effect. The issue has also been considered in Victoria.¹³²

5.70 These domestic developments are consistent with adoption laws in several overseas jurisdictions. For example, gay and lesbian individuals are eligible to adopt children in the United Kingdom,¹³³ South Africa,¹³⁴ certain regions of Spain,¹³⁵ Denmark,¹³⁶ Iceland,¹³⁷ The Netherlands,¹³⁸ Norway,¹³⁹ Finland,¹⁴⁰ Sweden,¹⁴¹ most Canadian provinces and territories¹⁴² and certain States in the USA.¹⁴³ Fuller discussion of some of the jurisdictions can be found in DP 44.¹⁴⁴

Should gay and lesbian individuals be eligible to adopt as step-parents in New South Wales?

5.71 Enabling gay and lesbian individuals to adopt in the capacity of step-parent would bring a number of potential benefits to both the adult and child involved. Significantly, adoption would:

5.73 While step-parent adoption offers the adopting adult and adoptive child a range of benefits, the procedure also entails potential disadvantages. These disadvantages are most relevant where a child has an existing second legal parent, who would be required to relinquish his or her parental rights. There is the possibility that the child will feel rejected by the legal parent who is relinquishing his or her parental rights. More concretely, the child would lose the right to inherit automatically from the relinquishing parent and that parent’s extended family. The Adoption Act 2000 (NSW) addresses such concerns by providing that an adoption order can only be made if the Court is satisfied that adoption is clearly preferable in the best interests of the child to any other action that could be taken by law, such as granting a parenting order in favour of the step-parent.¹⁴⁵

5.74 The potential disadvantages of step-parent adoption are no more acute where the potential adoptive parent is in a same sex relationship with a child’s legal parent than where the child’s step-parent is in an opposite sex relationship. Indeed, where a child had been artificially conceived by a single lesbian, step-parent adoption would not involve severing any family relationships. And where concerns do arise about the desirability of adoption, the statutory safeguard¹⁴⁶ is rendered no less effective by the fact that the step-parent is in a same sex relationship with the child’s legal parent.

5.75 The Commission considers that there is no justification for excluding gay and lesbian step-parents from the ambit of the relevant provisions of the Adoption Act 2000. All children should have the opportunity to be adopted by a step-parent, when adoption is in the child’s best interests.

5.76 Co-mothers are, by definition, different from step-parents. The fundamental difference is that a co-mother has intended to be a child’s parent from the point of the child’s conception, while a step-parent may not become involved in a child’s life until a much later stage. It is necessary to consider whether adoption law should reflect this difference.

5.77 The current step-parent adoption provisions contain certain conditions that are arguably inappropriate in the context of adoption by a co-mother, namely the requirements that the child be at least five, and that the step-parent have lived with the legal parent for at least 3 years.¹⁴⁷

5.78 Even if the step-parent adoption provisions were amended in accordance with Recommendation 21, these conditions would preclude a co-mother from adopting her child for at least five years. This means that children who were conceived through artificial insemination, in the context of a lesbian relationship, would bear the disadvantage of having only one legal parent until they were at least five years old.¹⁴⁸ In recognition of the implications of the step-parent adoption conditions for these children, the Commission asked in DP 44 whether a co-mother should be able to adopt her child under modified step-parent adoption provisions.¹⁴⁹

5.79 The Gay and Lesbian Rights Lobby provided the only submission that directly responded to this issue. The Lobby submitted that there should be a new provision in the Adoption Act 2000 which provides specifically for adoption by a co-mother where there is either one legal parent or where both legal parents consent to the adoption. This provision should have a presumption in favour of an adoption order or, at the very least, no presumption against it. The Lobby supported a provision of this nature, even if the Status of Children Act 1996 were amended, because it could be useful if the child was born in a jurisdiction which did not presume co-mothers to be legal parents.

5.80 A modified form of step-parent adoption is provided for in The Netherlands. There, where a child is conceived in the context of a lesbian relationship, the co-mother can apply to adopt the child immediately after the birth.¹⁵⁰ The general requirement that the child be cared for by the step-parent for at least one year is removed. However, in both co-mother and general step-parent adoption, the adopting parent must have cohabited with the child’s legal parent for at least three years.

5.81 The Commission considers that enabling co-mothers to adopt, under a modified form of step-parent adoption, would be of significant benefit to children who are conceived through artificial insemination in the context of a lesbian relationship. The current temporal restrictions on step-parent adoption, in particular the requirement that the child be at least five years old, should not be applicable to this form of adoption.

5.82 Such a provision would be of particular importance if the Status of Children Act 1996 (NSW) were not amended in accordance with Recommendations 18 and 19. However, even if that Act were amended, a co-mother adoption provision would be a valuable way to:

5.83 The Anti-Discrimination Board and the Gay and Lesbian Rights Lobby submitted that the Commission should consider moving beyond the limits of the two-parent model towards recognition of multi-parent families. A possible means of recognising multiple parents would be through adoption.

5.84 This is not an issue that was raised in DP 44, nor one on which the Commission has consulted with the community. Given that enabling a child to have more than two legal parents at any one time would represent a fundamental shift in family law, recognition of multiple legal parents requires extensive consultation. This is particularly so given the controversial nature of such a step. Further, the significance of a recommendation to that effect would extend beyond the terms of reference for this Report. However, the Commission considers that this issue merits further, detailed consideration in the context of a wider reassessment of the fundamental principles of Australian family law.

5.85 The Commission considers that the disadvantages currently faced by children in non-traditional families are most appropriately addressed by reforming the Status of Children Act 1996 (NSW) and the Adoption Act 2000 (NSW). However, if the recommendations in relation to these statutes are not implemented, we consider that a comprehensive statute audit should be undertaken with the aim of identifying areas of non-recognition and assessing whether the lack of recognition is consistent or inconsistent with the purpose of the law in question. Such an exercise was supported in a number of submissions.¹⁵² The Commission has not undertaken this task in the course of this reference in light of our recommendations concerning comprehensive, rather than piecemeal, reform.¹⁵³ We have, however, examined the specific issue of child support, as the Social Issues Committee identified this as an area in need of prompt attention.¹⁵⁴

5.86 The assessment of child support is primarily governed by the Child Support (Assessment) Act 1989 (Cth) (“the CSAA”).¹⁵⁵ The FLA also provides for the making of child maintenance orders, when child support under the CSAA is not available in a particular case.¹⁵⁶

5.87 Under both the FLA and the CSAA, parents have the primary duty to maintain their child or children.¹⁵⁷ For the purposes of the FLA, a “parent” is defined as a biological, adoptive or presumptive parent.¹⁵⁸ This definition does not include functional parents who stand in loco parentis. Similarly, a “parent” for the purposes of the CSAA is a biological, adoptive or presumptive parent.¹⁵⁹ The CSAA specifically defines what is meant by the terms “adoptive” and “presumptive” parent. Section 5 provides that:

5.90 Step-parents are not liable to pay child support in respect of their step-children under the CSAA, unless they have legally adopted the child. Step-parents who have not adopted their step-child may have a duty to maintain that step-child under the FLA.¹⁶⁹ However, the definition of “step-parent” is confined to individuals who are or were married to a legal parent of the child.¹⁷⁰

5.91 The maintenance provisions of the PRA provide limited scope for the provision of child support by a functional parent in the context of a domestic relationship. A court may make an order for partner maintenance on the basis that the applicant is unable to support himself or herself because he or she has the care and control of a child of the parties or a child of the respondent. The child must be under the age of 12 years or, if the child has a physical or mental disability, under the age of 16 years, at the time of the application.¹⁷¹ Unless s 5(3)(d) of the PRA is interpreted widely, these provisions will not permit maintenance to be sought from a functional parent who has not been granted a parenting order.¹⁷² Recommendation 17 is intended to ensure that s 5(3)(d) is interpreted widely to allow for the possibility of an award of maintenance against a functional parent.

5.92 The age limits under the PRA are significantly lower than those found in the Commonwealth legislation, where an application for maintenance or child support can be made in relation to a child until he or she turns 18, or marries or enters into a de facto relationship.¹⁷³ A further point of contrast between the PRA and the Commonwealth legislation is that under the State law, any entitlement to financial assistance depends upon the applicant being unable to support himself or herself. There is no scope to find that a non-resident co-mother, for example, has an obligation to assist with the financial burden of raising a child, independently of the resident parent’s financial circumstances. Finally, as the PRA maintenance regime is essentially about partner maintenance, it lacks the child-centred focus of the Commonwealth child support regime and places children in non-traditional families completely outside that regime. Recommendation 32, discussed in Chapter 10, raises the age limits for child maintenance orders to 18, regardless of whether or not the child has a disability.

5.93 A functional parent can be required to provide child support through the equitable doctrine of promissory estoppel.¹⁷⁴ The potential operation of this doctrine is illustrated by the case of W v G,¹⁷⁵ which involved a dispute between a lesbian couple who had had two children together, conceived by way of artificial insemination. W was the biological mother of the children and, following the breakdown of the relationship, the children remained in her care. She sought a lump sum payment from G by way of equitable compensation towards the cost of maintaining them.

5.94 The key elements in a claim of promissory (or equitable) estoppel are that the plaintiff has acted in reliance on a promise made by the defendant, that the defendant knew or intended the plaintiff would so act and that this has caused the plaintiff detriment. W argued that by making positive comments about having children together and by participating in the insemination process, G caused or encouraged her to believe that G would fulfil her promise to act as a parent to the children and to contribute to their upbringing. She further argued that, relying on that promise, W had the two children and was now placed in the detrimental position of having the cost and responsibility of raising the children without G’s assistance. The Court found that W was entitled to relief on the basis of equitable estoppel and ordered that G provide a lump sum of $151,125 towards the cost of raising the children.

5.95 While the doctrine of equitable estoppel may provide a legal means of dealing with questions of child support by co-mothers, it is undesirable that it become the primary vehicle for doing so. As one commentator has noted, addressing the dispute in terms of an “unconscionable dishonoured deal”, which could equally have involved property instead of children, is an inappropriate way to approach child support matters. The proper focus of a child support application should be the needs of the child. Furthermore, had the dispute been resolved under the FLA, the parties would have had the opportunity to use the Family Court’s dispute resolution services such as conciliation and mediation, which may have avoided litigation altogether.¹⁷⁶

Should a discretionary child maintenance duty be imposed on unmarried step-parents?

5.96 As noted above, married step-parents may have a duty to maintain a child under the FLA.¹⁷⁷ This duty is secondary to that of a legal parent and is also dependent on a court determining that it is appropriate to impose the duty in the particular circumstances. The factors that a court must consider when determining whether to impose a child maintenance order on a step-parent are:

5.98 There is also a concern that the State will be left to support the children of relationships which have ended. It is thought to be more economical and just that a person who has previously borne responsibility for the child continue to do so. In the United States, for example, legislation in several States imposes liability on step-parents “only for children who are, or are likely to become, recipients of public assistance.”¹⁸²^�

5.99 The question for the Commission is whether a functional parent who is in a de facto relationship with a child’s legal parent should have a discretionary, secondary obligation to maintain the child, equivalent to that imposed on married step-parents under s 66M of the FLA. Such an obligation is imposed in certain provinces of Canada¹⁸³ and the United Kingdom.¹⁸⁴

5.100 Five submissions supported extending a discretionary child maintenance obligation to unmarried step-parents.¹⁸⁵ In the view of the Anti-Discrimination Board, the public policy rationale for discretionary step-parent maintenance obligations is equally applicable in the context of unmarried step-parents, whether they are in a same sex or opposite sex de facto relationship. One submission opposed any extension, stating that the issue should be referred to the Commonwealth because child support obligations should be uniform throughout Australia.¹⁸⁶

5.101 The Commission considers that the policy underlying the FLA step-parent maintenance obligation applies equally in the context of unmarried step-parents, whether they be in same sex or opposite sex relationships. As with married step-parents, there are strong arguments against imposing an automatic liability on unmarried step-parents to pay maintenance for their step-children with whom they have no legal relationship: in some circumstances, it may be unfair to impose financial obligations on a person to maintain a child simply by reason of having entered into a relationship with that child’s parent. However, in other circumstances, particularly in the case of long relationships, similar arguments justify requiring an unmarried step-parent to pay maintenance as justify a married step-parent paying maintenance. A discretionary power to impose such an obligation would ensure that an unmarried step-parent would be required to pay maintenance only in circumstances where the interests of the child and the nature of the relationship justified such an imposition. Such circumstances may be rare.

5.102 In our view, the preferable way to extend child maintenance obligations to unmarried step-parents is by amending the relevant provisions of the FLA. While this may be realistically achievable in the case of unmarried step-parents in opposite sex relationships, the disinclination of the federal government to recognise gay and lesbian families makes it unlikely that the FLA will be amended with comprehensive effect. However, our Recommendation 17 to amend the PRA maintenance provisions would go some way to ensuring that children who have gay or lesbian step-parents are not disadvantaged in this area.

5.103 The principal object of the child support provisions in both the FLA and the CSAA is to ensure that children receive a proper level of financial support from their parents.¹⁸⁷ This object is reflected in the primary duty imposed on parents to maintain a child.¹⁸⁸ The clear policy basis of these child support laws is that the legal parents of a child should bear the primary financial responsibility of supporting that child, either because of their biological parentage¹⁸⁹ or their acceptance of that responsibility through adoption.

5.104 Another rationale underlying the policy of child support obligations is that parents, and not the State, should provide financial support for children. As Justice Fogarty noted in B v J, the “financial support of children is a matter of great public interest” and “the community as a whole would be adversely affected if a person were permitted to waive a ‘right’ to seek support from a child’s parent”.¹⁹⁰

5.105 In DP 44, the Commission raised the issue of whether it is appropriate to impose an automatic child support duty on co-mothers. Four submissions expressed general support for the imposition of such a duty.¹⁹¹ Implicit in these submissions was that support was conditional on legal recognition of the co-mother. One submission expressly limited its support of an automatic duty to legal parents.¹⁹² Our community consultations revealed divided opinion on this issue. While there was universal support for co-mothers being under a moral obligation to provide child support, reservations were expressed about the desirability of translating that into a legal obligation, in the absence of recognition of the co-mother as a legal parent.¹⁹³

5.106 The Commission considers that it would be consistent with the purpose of child support laws to impose an obligation on co-mothers to provide financial support for their children. However, it is unacceptable and unjust for an automatic financial obligation to be imposed on a co-mother in the absence of accompanying automatic legal recognition of her status as a parent of the child. In this respect, the Commission shares the concern expressed in the submissions that rights should, in general, accompany responsibilities.

5.107 If Recommendation 21 regarding amendment of the Adoption Act 2000 (NSW) is implemented, co-mothers would fall within the rubric of federal child support legislation. This is because the definition of parent in both the FLA and CSAA includes an adoptive parent

5.108 Implementation of the Commission’s Recommendation 18, in relation to the parenting presumptions under the Status of Children Act 1996 (NSW), will not, however, bring co-mothers within the ambit of the CSAA.

5.109 Section 60(H) of the FLA, on which the CSAA relies, defines a presumptive parent in the context of children born using artificial insemination procedures in gender specific terms. Section 60(H)(1) specifically deals with couples involved in an artificial insemination procedure. However, it refers to a couple who is married or living as husband and wife on a genuine domestic basis.

5.110 If an automatic child support duty is to be imposed on co-mothers, the provisions of s 60H(1) of the FLA need to be amended in gender neutral terms. Being Commonwealth legislation, the Commission is unable to recommend changes either to the CSAA or the FLA. We can only urge the Commonwealth to review the operation of its child support laws in relation to children born to lesbian couples using artificial insemination procedures. Unless it does so, children born into non-traditional families will suffer disadvantage as a result of an inability of the birth mother to enforce child support obligations against the co-mother.

5.111 In the absence of any changes to the law in these areas, it is appropriate that co-mothers are treated in the same way as other unmarried step-parents.

Table of contents

1. Our consultations with the lesbian and gay communities indicated that there is a significant divergence of opinion regarding the appropriate terminology: Sydney focus group (children).

2. See Australian Bureau of Statistics, Australian Social Trends 2003 (Catalogue No 4102.0, 2003) at 35. According to this report, while families comprising couples with children (of any age) remain the most prevalent type of family in Australia, the increase in the number of these families was relatively small (3%) between 1986 and 2001. In comparison, the number of one-parent families increased by 53%, and couple families without children living with them increased by 33% over the same period. Consequently, over time, couple families with children are forming a smaller proportion of all families - 47% of families in 2001, down from 54% in 1986.

3. In Re Patrick, Guest J observed that gay and lesbian families are an apparently growing phenomenon in Australian society: Re Patrick [2002] FamCA 193 at para 327. This view is supported by an Australian survey, cited in J Millbank “From here to maternity: a review of the research on lesbian and gay families” (2003) Australian Journal of Social Issues 541 at 549. There is limited information available about the actual numbers of children who are being raised by lesbian or gay parents. However, it has been estimated that around 15-20% of Australian lesbians and 10% of gay men have children: J Millbank “From here to maternity: a review of the research on lesbian and gay families” (2003) Australian Journal of Social Issues 541 at 549.

4. Again, in Re Patrick, Guest J stated that gay and lesbian families cannot be characterised as an homogenous group because they may take many forms: [2002] FamCA 193 at para 328. See also J Millbank “From here to maternity: a review of the research on lesbian and gay families” (2003) Australian Journal of Social Issues 541 at 545-561 and J Millbank (on behalf of the Gay and Lesbian Rights Lobby), Meet the Parents: A Review Of The Research On Lesbian And Gay Families (Gay and Lesbian Rights Lobby Inc (NSW), Sydney, 2002) at 22-36.

5. NSW, Legislative Council Standing Committee on Social Issues, Domestic Relationships: Issues for Reform (Inquiry into De Facto Relationships Legislation) (Report 20, Parliamentary Paper No. 127, December 1999) (“the Social Issues Committee Report”) at 77, 82, 83.

6. See Re Patrick [2002] FamCA 193 at para 335 and Re Mark [2003] FamCA 822 at para 82.

8. The Social Issues Committee’s use of the phrase “non-biological parent” equates to our use of “functional parent”, which is defined at para 5.1.

15. Likewise, parental leave is not available to a woman who becomes the partner of a woman who is already pregnant.

17. In a Canadian study, several functional mothers reported difficulties in getting their children admitted to hospital or to see a doctor because they could not prove that they had the authority to do so: F Nelson, Lesbian Motherhood: An Exploration Of Canadian Lesbian Families (University of Toronto Press, Toronto, 1996) at 14-15, cited in J Millbank, “From here to maternity: a review of the research on lesbian and gay families” (2003) Australian Journal of Social Issues 541 at 552.

18. This was raised as a practical problem for families in the Sydney focus group (children).

20. Unlike day-to-day issues, these consequences cannot be avoided by way of a parenting order.

21. Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) s 14(3), s 14(4) and s 18.

22. Sydney focus group (children); Lismore focus group (children). Similar concerns were expressed about continued contact with a child should the relationship between the legal and functional parent or co-mother end.

24. Ensuring that there is a current will is an obvious means of avoiding the deleterious effect of the lack of recognition of functional children in the intestacy context. However, this does not address the concern that the functional child is disadvantaged because of the non-recognition of the functional parent/child relationship. It should be noted that a functional child could be eligible to claim under the Family Provision Act 1982 (NSW): see DP 44 at para 3.69.

26. See, for example, Workers’ Compensation Act 1987 (NSW) s 25, s 37. See DP 44 at para 3.30-3.38 for a discussion of the various pieces of legislation that make provision for the functional parent/child relationship.

34. PRA s 17(2). A further exception, unrelated to the existence of a child, is that the applicant has made substantial contributions, which would not otherwise be adequately compensated: PRA s 17(2)(b)(i). See para 6.14-6.15.

35. Property (Relationships) Legislation Amendment Act 1999 (NSW) s 4 and Sch 2.

42. See below at para 5.38-5.41 for a discussion of parenting orders under the FLA.

44. “This extended definition will ensure that the welfare of children being cared for in the domestic relationships contemplated by the bill is considered if the domestic relationship breaks down”: NSW, Parliamentary Debates (Hansard) Legislative Council, 13 May 1999 at 229.

46. See P Parkinson, Submission at 8-9; Anti-Discrimination Board of NSW, Submission at 9-10.

48. See Lesbian and Gay Solidarity, Submission at 2; Victorian Bar, Submission at para 14-23; Equity Division of the Supreme Court of NSW, Submission at para 32; Women’s Legal Resources Centre, Submission at 7; NSW Young Lawyers, Submission at 3.

49. Equity Division of the Supreme Court of NSW, Submission at para 32; Anti-Discrimination Board of NSW, Submission at 9-10; Gay and Lesbian Rights Lobby Inc, Final submission at 7; Lesbian and Gay Solidarity, Submission at 2; Women’s Legal Resource Centre, Submission at 7.

51. DP 44 proposed to amend s 5(3)(d) to state: “a child for whose long-term welfare both parties exercise parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1989) without necessarily having a parenting order in their favour”: see Issue 6 at para 3.22.

52. P Parkinson, Submission at 8-9; Anti-Discrimination Board of NSW, Submission at 10; Women’s Legal Resources Centre, Submission at 7.

53. Professor Parkinson highlighted FLA s 55A (as well as the loco parentis concept), while the Women’s Legal Resources Centre suggested FLA s 65C (as well as introducing the term “functional parent” into the PRA).

63. It should be noted that recent amendments to the FLA under the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) include amendments to the imposition of parenting orders, which for the main part emphasise the presumption that equal shared parental responsibility by both parents will generally serve the child’s best interests: see, in particular, Schedule 1[12]-[13].

65. Previously FLA s 64B(2)(c), amended and renumbered as s 64B(2)(f) by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Sch 1[22].

66. Previously FLA s 64B(2)(d). Under the new amendments, s 64B(2)(c) will provide for a parenting order to deal with the allocation of parental responsibility for a child: Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Sch 1[22].

67. It is clear from FLA s 64C that a parenting order may be made in favour of a person who is not a legal parent of a child. It should be noted that the granting of a parenting order does not necessarily affect the parental responsibility of another person, such as a biological parent, for the child: FLA s 61D(2).

68. Joint parenting orders have been granted to lesbian couples: Lismore focus group (children); J Millbank, “Same sex couples and family law”, Paper presented at the Third National Conference of the Family Court (October 1998) �www.familycourt.gov.au/papers/html/millbank.html�; J Millbank, And then … the brides changed nappies (Final report, Gay and Lesbian Rights Lobby Inc, Sydney, 2003) at 12.

69. As Re Mark [2003] FamCA 822 illustrates, a biological father and his male partner may seek a joint parenting order.

70. J Millbank, And then … the brides changed nappies (Final report, Gay and Lesbian Rights Lobby Inc, Sydney, 2003) at 12.

72. Currently FLA s 65E. Under the new amendments, the paramountcy of the child’s best interests will be provided for in s 65AA: see Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Sch 1[28].

73. We were advised that people living in regional and rural New South Wales travel to Sydney to seek parenting orders because they are concerned that they will encounter homophobia if they deal with local courts: Lismore focus group (children).

79. J Millbank, “From here to maternity: a review of the research on lesbian and gay families” (2003) Australian Journal of Social Issues 541 at 551.

84. Status of Children Act 1996 (NSW) s 14(1)(a) and s 14(4). See also FLA s 60H.

85. D Kovacs, “The AID child and the alternative family: who pays? (or mater semper certa est – that’s easy for you to say!)” (1997) 11 Australian Journal of Family Law 141 at 142.

86. Further discussion regarding the background of the presumptions is contained in DP 44 at para 3.92-3.96.

87. NSW Attorney General’s Department, Report on the Review of the Status of Children Act 1996 (2003). This review was undertaken in accordance with s 40 of the Status of Children Act 1996 (NSW).

88. NSW Attorney General’s Department, Report on the Review of the Status of Children Act 1996 (2003) at Conclusion.

89. NSW Attorney General’s Department, Report on the Review of the Status of Children Act 1996 (2003) at para 4.7.

91. NSW Young Lawyers, Submission at 2; Law Society of NSW, Submission at 1-2; Gay and Lesbian Rights Lobby Inc, Final submission at 8; Women’s Legal Resources Centre, Submission at 8; Lesbian and Gay Solidarity, Submission at 2; Victorian Bar, Submission at para 18-20; Anti-Discrimination Board of NSW, Submission at 11-12.

94. Gay and Lesbian Rights Lobby Inc, Final submission at 8. The Lobby also advised that no fathers who attended consultations objected to the proposal: at 8.

95. Sydney focus group (children); Lismore focus group (children). Participants highlighted the automatic nature of the recognition as being particularly desirable.

97. The Lobby submitted that the retrospective effect of the amendments should be restricted to lesbian couples who were still cohabiting and jointly parenting resident children under the age of 18, born to them as a couple through artificial insemination, at the time the amendments came into effect.

98. Consent is presumed, although the presumption is rebuttable: Artificial Conception Act 1985 (WA) s 6A(2).

102. A similar amendment was also recently proposed in Tasmania in the Relationships (Consequential Amendments) Bill 2003 Sch 1[5]. However, the clause was struck out in the Upper House. Note that presumptive recognition was supported by the Tasmanian Law Reform Institute. The issue is also considered in Victorian Law Reform Commission, Assisted Reproductive Technology and Adoption: Parentage (Position Paper 2, 2005) at Chapter 3. In particular, Interim Recommendation 1 proposes that Victorian law recognise the birth mother’s female partner as a parent of the child. Similarly, Interim Recommendation 5 proposes that legislation relating to the registration of the birth of a child be in gender neutral language, enabling a co-mother to be registered.

104. Parentage Act 2004 (ACT) s 8(1) and 11(4). While the presumption has retrospective effect, the section does not affect interests in property that happened before the commencement of the Act: s 8(2) and (3).

107. See Status of Children Act 1969 (NZ), Part 2 as inserted by Status of Children Amendment Act 2004 (NZ) s 14.

108. Act instituting civil unions and establishing new rules of filiation SQ 2002, c 6.

111. M McKee, “California same sex couples win parenting rights” The Recorder, 24 August 2005.

114. See, for example, New Zealand Law Commission, New Issues In Legal Parenthood (Preliminary Paper 54, 2004); Victorian Law Reform Commission, Assisted Reproductive Technology And Adoption: Should The Current Eligibility Criteria In Victoria Be Changed? (Consultation Paper, 2003); F Kelly, “Redefining parenthood: gay and lesbian families in the Family Court - the case of Re Patrick” (2002) 16 Australian Journal of Family Law 1; D Dempsey, “Donor, father or parent? Conceiving paternity in the Australian Family Court” (2004) 18 International Journal of Law, Policy and the Family 76.

116. Gay and Lesbian Rights Lobby Inc, Final submission at 2; Anti-Discrimination Board of NSW, Submission at 3.4.

117. See NSW Law Reform Commission, Review of the Adoption of Children Act 1965 (NSW) (Report 81, 1997) at Recommendation 58 and para 6.119-6.121. This issue is also discussed in Victorian Law Reform Commission, Assisted Reproductive Technology and Adoption: Parentage (Position Paper 2, 2005) at Chapter 6. In particular, Interim Recommendation 26 proposes that the relevant Victorian legislation, the Adoption Act 1984 (Vic), be amended to allow for adoption orders to be made in favour of same sex couples.

118. See NSW, Department of Community Services, Review of the Adoption Act 2000 (Issues paper, April 2006).

119. Step-parent adoptions are not a common occurrence: in 2002-2003, there were only 72 adoptions by step-parents in Australia: Australian Institute of Health and Welfare, Adoptions Australia 2002-03 (Canberra, 2003).

121. Adoption Act 2000 (NSW) Dictionary. We note that this definition is inconsistent with that contained in the PRA.

122. Adoption Act 2000 (NSW) s 30. The requirement that the Court be satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other legal action means that the Court will have to be satisfied that some form of parenting order would not be more appropriate.

127. Anti-Discrimination Board of NSW, Submission at para 3.2; Gay and Lesbian Rights Lobby Inc, Final submission at 7-8; Lesbian and Gay Solidarity, Submission at 2; NSW Young Lawyers, Submission at 3; Law Society of NSW, Submission at 1; Women’s Legal Resources Centre, Submission at 8.

130. Adoption Act 1994 (WA) s 67(1)(a). Lesbian and gay individuals are eligible to adopt in the same circumstances as heterosexual individuals.

133. Victorian Law Reform Commission, Assisted Reproductive Technology And Adoption: Should The Current Eligibility Criteria In Victoria Be Changed? (Consultation Paper, 2003).

135. Du Toit v Minister for Welfare and Population Development (2003) 4 CHRLD 21.

141. Adoption Act (153/1985) (Finland). However, although homosexual individuals may be able to adopt, registered homosexual partners are excluded from the definition of spouse in the Adoption Act, by s 9(2) of the Act on Registereed Partnerships (950/2001) (Finland).

142. Registered Partnerships Act (SFS 1994:1117) (Sweden) ch 3, s 1 (as amended in 2003).

143. Adoption Act RSBC 1996 c. 5 (British Columbia); The Charter Compliance Act SM 2002 c. 24 (Manitoba); Child Welfare Act RSA 2000 c. C-12 (Alberta); Adoption Act SNL 1999 c. A-2.1 (Newfoundland); Adoption Act SNWT 1998 c. 9 (Northwest Territories); SCM and NCJ (2001) 202 DLR (4th) 172 (regarding Nova Scotia); Child and Family Services Act RSO 1990 c. C.11 (Ontario) (see also Re K (1995) 23 OR (3d) 679 regarding Ontario); Civil Code of Quebec SQ 1991 c. 64 (Quebec); Adoption Act SS 1998 c. A-5.2 (Saskatchewan).

144. Step-parent adoption is available by statute or appellate court decision in California, Connecticut, District of Columbia, Illinois, Indiana, Massachusetts, New York, New Jersey, Pennsylvania and Vermont. See, for example, Vermont Stat Ann Tit 15A 1-102(b) (Supp 2000) (Vermont); California Family Code �9000(f) (California); Connecticut Gen Stat 45a-724(3).

148. Adoption Act 2000 (NSW) s 30. See para 5.66 above regarding additional conditions.

149. Unless, of course, the Status of Children Act 1996 (NSW) were amended in accordance with Recommendation 18.

153. See Anti-Discrimination Board of NSW, Submission at 3.5.2; Law Society of NSW, Submission at 2; NSW Young Lawyers, Submission at 4-5; Women’s Legal Resources Centre, Submission at 9; Lesbian and Gay Solidarity, Submission at 2; Gay and Lesbian Rights Lobby Inc, Final submission at 11 (although only necessary if only partial recognition were recommended and if an audit would not cause further delays in reforming this area).

154. We note that the Victorian Bar submitted that an exercise of this nature was “manifestly too ambitious”: Submission at para 21.

156. A discussion of Commonwealth child support legislation is contained in DP 44 at para 3.104-3.112.

157. See FLA Part 7 Div 7. FLA s 66E provides that one party cannot apply for a child maintenance order from another party if an application for child support could be made under the CSAA from either party.

159. In the marriage of Tobin (1999) 24 Fam LR 635; FLA s 60D, which defines “parent” in relation to a child who has been adopted as an adoptive parent of the child.

160. Re B and J (1996) 21 Fam LR 186; In the marriage of Tobin (1999) 24 Fam LR 65.

166. See Re B and J (1996) 21 Fam LR 186 at 191 (Fogarty J). Note that it is unclear if, or how, this provision applies in situation where a female bears a child through the use of an artificial insemination procedure, yet is not the recipient of donated ova: Re J and M (2004) 32 Fam LR 668.

169. See Re B and J (1996) 21 Fam LR 186 at 191-194 (Fogarty J). Note that it is unclear if, or how, this provision applies in situations where the male who provided the sperm for an artificial insemination procedure seeks to be recognised as the legal parent of the resulting child: Re Patrick (2002) 28 Fam LR 579 and Re Mark (2003) 31 Fam LR 162. This forms part of a wider debate regarding the status of donors, discussed above at para 5.59-5.62.

170. A step-parent will only have a duty to maintain a child if a court determines it is proper they have such a duty: FLA s 66D. The matters that must be taken into account by a court are listed in FLA s 66M.

174. FLA s 66L(1), s 66V. Child Support (Assessment) Act (Cth) s 24. An exception to the Commonwealth age limit may exist if maintenance is necessary to enable a child to complete his or her education or because of a disability of the child: FLA s 66L(1)(a), (2)(a) and (2)(b); Child Support (Assessment) Act (Cth) s 151B

176. W v G (1996) 20 Fam LR 49. For a detailed discussion of this decision, see J Millbank “An implied promise to parent: lesbian families, litigation and W v G (1996) 20 Fam LR 49” (1996) 10 Australian Journal of Family Law 112 and J Millbank, “Parental responsibility of co-mothers” (1996) 21 Alternative Law Journal 243.

177. D Sandor, “Paying for the promise of co-parenting - a case of child maintenance in disguise?” (1996) 43 Family Matters 24 at 26.

180. See C Davies, “The ever-changing picture of support and other developments” 20 Canadian Family Law Quarterly 213.

181. A Harvison Young, “This child does have 2 (or more) fathers: step-parents and support obligations” (2000) 45 McGill Law Journal 107 at 119

182. See, for example, Chartier v Chartier [1999] 1 SCR 242 in which the approach of the Canadian Supreme Court privileged the best interests of the child.

183. M Mahoney, “Support and custody aspects of the step-parent – child relationship” 70 Cornell Law Review 38 at 43.

186. Anti-Discrimination Board of NSW, Submission at 14; Gay and Lesbian Rights Lobby Inc, Final submission at 10; Law Society of NSW, Submission at 2 (proviso that must have been in relationship for 2 years); NSW Young Lawyers, Submission at 4; Women’s Legal Resources Centre, Submission at 9.

192. Lesbian and Gay Solidarity, Submission at 2; Law Society of NSW, Submission at 2; NSW Young Lawyers, Submission at 4; Anti-Discrimination Board of NSW, Submission at 13-14 (with some reservations).