• Introduction
• Terminology
• Constitutional framework
• Types of functional parent/child relationships
• Existing recognition
• Existing options for additional recognition
• Areas of non-recognition
• Options for reform

INTRODUCTION

3.1 While the focus of this reference is on relationships between adults, the legal treatment of parent/child relationships raises equally important issues. In some areas, the law recognises the relationship between adults and children who have a functional, rather than biological or adoptive, parental relationship. However, legal recognition of the functional parent/child relationship is inconsistent.¹

Harry lives with his biological mother, Pippa, and her partner Mick. His biological father is Jai, but Jai and Pippa’s relationship ended before Harry was born and Jai has no contact with Harry. Harry has always viewed Mick, whom he calls Dad, as his father and he is treated as a grandchild by Mick’s parents, whom he calls Nanna and Grandad. But for many important legal purposes, such as determining who would receive a share of Mick’s estate if he died without a will, the “father and son” relationship between Mick and Harry is invisible.

 

3.2 As the Legislative Council’s Standing Committee on Social Issues (“the Social Issues Committee”) noted in its Inquiry into De Facto Relationships Legislation, limited recognition of the functional parent/child relationship has the potential to disadvantage the children of those in non-traditional relationships.² Accordingly, the Social Issues Committee recommended that:

the issue of legal recognition of non-biological parents³ to ensure children of those in non-traditional domestic relationships are not disadvantaged be fully examined, with a view to amending appropriate legislation if necessary.⁴

3.4 This chapter begins with an outline of the constitutional framework within which the legal recognition of functional parent/child relationships exists. It then describes a range of common scenarios where a functional parent/child relationship may arise. We discuss the ways that these relationships are or can be legally recognised at present before identifying a range of other legal areas that do not recognise such relationships. Finally, we consider ways in which the law might better address these functional relationships.

3.5 As a preliminary matter, the Commission notes that the issues discussed in this chapter are unaffected by debate about the desirability of gay parenting and other such matters. The reality is that diverse family structures exist in NSW and the parental relationships in many children’s lives diverge from the traditional nuclear family model.⁶ As one commentator argues, by continuing to restrict the legal recognition of parent/child relationships, we “perpetuate the fiction of family homogeneity at the expense of the children whose reality does not fit this form”.⁷ In so doing, the current disadvantages faced by the children of those in non-traditional relationships are also perpetuated.

TERMINOLOGY

3.6 The basic division with which this chapter is concerned is between cases where an adult has the legal status of being a child’s parent and cases where an adult does not. The most common way in which an adult has legal parental status is by being the biological parent of a child. However, this status can also be acquired by adopting a child.⁸ Legal parental status can also be presumed from circumstances.⁹

3.7 As people other than a biological parent can acquire legal parental status, we refer to people who possess such status as “legal parents”. “Legal child” has the equivalent meaning. We refer to an adult who acts as a child’s parent but is not a legal parent as a “functional parent”. “Functional child” has the equivalent meaning.

3.8 The concept of a functional parent/child relationship covers a broad spectrum of relationships, which are outlined below. Our use of the terms “functional parent” and “functional child” encapsulates this range. Any differences in the nature of the functional parent/child relationship will, however, be relevant when considering in what circumstances it is appropriate to recognise the relationship.¹⁰

3.9 Later in this chapter, we discuss the legal status of a woman who consents to the artificial insemination of her female partner, with the intention of being a parent to the child. We refer to the woman who conceives the child as the “birth mother” and to her partner as the “co-mother”.

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 acts as a child’s parent but is not his or her 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. 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 functional parent to the child.

CONSTITUTIONAL FRAMEWORK

3.10 The Commonwealth of Australia Constitution Act 1900 (Cth) divides legislative responsibility for children between the Commonwealth and the State Parliaments. Under the original Constitution, the Commonwealth’s legislative power over family law was limited to making laws about marriage, divorce and its consequences. Specifically, section 51(xxi) provides the Commonwealth with power to legislate with respect to marriage, while section 51(xxii) refers to “divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants”. Disputes about ex-nuptial children used to be State matters, dealt with by State courts.

3.11 However, from 1987, the State governments (other than Western Australia) referred their powers in respect of “maintenance, custody and guardianship of, and access to, all children and over the payment of expenses in relation to children” to the Commonwealth.¹¹ As a result, issues to do with residence and contact (formerly guardianship, custody and access), child maintenance and support, now come within the jurisdiction of the Family Court of Australia, irrespective of the marital status of the child’s parents. This includes ex-nuptial children, children from blended families, foster children, children from previous marriages and children born with the assistance of artificial conception procedures.

TYPES OF FUNCTIONAL PARENT/CHILD RELATIONSHIPS

Child with two legal parents plus a functional parent

3.12 Many children in NSW do not live with two legal parents.¹² A child may be living with only one legal parent because his or her parents are no longer in a relationship or one parent has died. Alternatively, although a child may have two legal parents, one of the parents may have had no involvement in the child’s life other than the fact of biological parentage. Where a child is living with only one legal parent and that parent has a partner, the partner may develop a parental relationship with the child. In such a situation, the child will then have two legal parents and a functional parent.¹³ The child may have a strong relationship with both the functional parent and the non-resident legal parent, in addition to the resident legal parent.

Hanna and Andrew are the biological parents of Clara. When Clara is born, Hanna and Andrew are living in a de facto relationship but their relationship ends when Clara is 6 months old and Andrew moves out. About one year later, Hanna begins a relationship with Shane, who subsequently moves in with Hanna and Clara. Although Andrew still sees Clara regularly, Clara comes to view Shane also as her father. She calls Andrew “Dad” and Shane “Pop”.

Child with one legal parent plus a functional parent

3.13 A child may have one legal parent because he or she was conceived through artificial donor insemination and his or her biological mother was not in a heterosexual relationship at the time. As sperm donors are not the legal parent of any child conceived using their sperm, if a woman without a male partner conceives a child through artificial donor insemination,¹⁴ that child will have one legal parent. An alternative way in which a child may have one legal parent is if he or she is adopted by a single person.

3.14 Where a child has one legal parent, he or she may acquire a functional parent if a parent/child relationship is formed with another adult, such as the legal parent’s partner.

Mai, who is 38 years old, decides that she would like to have a child. As she is not in a relationship, she asks her friend, William, if he would be willing to help her conceive a child through artificial insemination. William is happy to help Mai and provides her with sperm donations. After a few attempts, Mai conceives and subsequently gives birth to Anna. At the time of her birth, Mai is Anna’s only legal parent. When Anna is three years old, Mai and Anna move in with Mai’s new partner, Charlotte. Charlotte soon becomes a second mother to Anna. One day Anna brings home a drawing of Mai and Charlotte from kindergarten – it is titled “My Two Mums”.

Child conceived through artificially inseminated donor sperm, with consent of birth mother’s female partner

3.15 A way in which a lesbian couple may have a child together is through the use of artificially inseminated donor sperm. Although both women have the intention to become parents of the child and may share in providing financial and emotional support for the child and undertaking child care responsibilities,¹⁵ only the birth mother will have a legally recognised parental relationship with the child. In the eyes of the law, the co-mother has only a limited and piecemeal relationship with the child; for many legal purposes, she is a total stranger. Accordingly, the child will have one legal parent¹⁶ and one functional parent.

Madeleine and Fiona have been in a relationship for 5 years and decide that they would like to have a child together. They choose to conceive a child through the use of artificially inseminated sperm. After much consideration, they decide that Fiona will be the birth mother. Madeleine carries out the insemination process and attends the pre-natal classes with Fiona, in preparation for assisting at the birth. When Colin is born, he is given both women’s last names. Madeleine takes a month’s leave from work to help care for their new baby.

 

3.16 We have confined the discussion of a functional parent/child relationship in the artificial insemination context to lesbian couples. This confinement is because the legal position outlined above stands in stark contrast with the situation when an opposite-sex couple have a child, using artificially inseminated sperm. Where a woman in a heterosexual relationship¹⁷ becomes pregnant as the result of an artificial insemination procedure,¹⁸ her male partner is presumed to be the father of the child, provided he consented to the procedure.¹⁹ It is irrelevant to this presumption that the male partner’s sperm was not used in the procedure.²⁰

EXISTING RECOGNITION

3.17 Legal recognition of the functional parent/child relationship is piecemeal and therefore inconsistent. This section provides examples of where that relationship is currently recognised.²¹

Property (Relationships) Act 1984 (NSW)²²

3.18 A functional parent/child relationship, arising in the context of a domestic relationship,²³ may be recognised for the purposes of the Property (Relationships) Act 1984 (NSW) (“the PRA”). The PRA defines “a child of the parties to a domestic relationship” as:

(a) a child born as a result of sexual relations between the parties,

(b) a child adopted by both parties,

(c) where the domestic relationship is a de facto relationship between a man and a woman, a child of the woman:


(i) of whom the man is the father, or

(ii) of whom the man is presumed, by virtue of the Status of Children Act 1996 (NSW) to be the father, except where such a presumption is rebutted,


(d) 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).²⁴

3.20 The precise circumstances in which a child in a functional parent/child relationship will be recognised as “a child of the parties to a domestic relationship” is unclear. The uncertainty lies in whether a functional parent can be said to have “all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children” in the absence of a parenting order under the Family Law Act 1975 (Cth) (“the FLA”),²⁶ conferring that responsibility.

3.21 We note that 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.²⁷ This distinction suggests that something more than acting as a parent is required to trigger section 5(3)(d). However, comments by the then Attorney General, the Hon J W Shaw, in his Second Reading Speech conversely suggest that the requirement in section 5(3)(d) is functional, rather than legal.²⁸

3.22 In the final analysis, the scope of the definition is unclear. However, we consider that a parenting order should not be required for a functional parent/child relationship to give rise to there being “a child of the parties to a domestic relationship”. Such a requirement would significantly limit the scope of the legislation and that of other statutes into which the section 5(3)(d) definition carries.²⁹

ISSUE 6

There should be legislative clarification that a parenting order is not required for a child to be a child of the parties to a domestic relationship, where one or both of the parents is a functional parent. This clarification should be achieved by amending section 5(3)(d) of the PRA to read as follows:


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 1998) without necessarily having a parenting order in their favour (emphasis added).

Do you agree? Why or why not?

• proceedings for financial adjustment;³⁰ and
• maintenance orders.³¹

3.25 In deciding whether or not to make an order adjusting the proprietary interests of the parties, a court is required to consider a range of contributions. Relevant contributions include those related to the welfare of a child of the parties or of a child accepted into the household of the parties.³⁴

3.26 Maintenance. The PRA provides for only a very limited right to maintenance. One of the two bases on which a 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. However, 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.³⁵

Effect of the Property (Relationships) Legislation Amendment Act 1999 (NSW)

3.27 The Property (Relationships) Legislation Amendment Act 1999 (NSW) (“the 1999 amendments”) made consequential amendments to a number of other statutes. For example, the definition in the PRA of “a child of the parties to a domestic relationship” carries over into a limited number of other Acts.³⁶ The breadth of recognition conferred by these statutes is again affected by the uncertainty about whether a child will be recognised as a child of his or her functional parent(s), by virtue of coming within the definition of “a child of the parties to a domestic relationship”, in the absence of a parenting order.

Family Provision Act 1982 (NSW)
3.28 The Family Provision Act 1982 (NSW) 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.³⁷ 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 PRA a child of that relationship”.³⁸

Trustee Act 1925 (NSW)
3.29 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).³⁹ Accordingly, a functional parent/child relationship may be recognised in this context.

Compensation and damages

Workers’ Compensation Act 1987 (NSW)
3.30 The Workers Compensation Act 1987 (NSW) regulates payment of compensation following the death or injury of a worker. Where a worker dies as a result of an injury sustained in the course of employment, compensation is payable by the employer to any dependent children of the worker.⁴⁰ “Child of the worker” is defined as “a child or stepchild of the worker and includes a person to whom the worker stood in the place of a parent”.⁴¹

3.31 Where a worker is incapacitated from working as the result of an injury sustained in the course of employment, the compensation payable to the worker will take into account any dependent children of the worker.⁴² In this context, the definition of child includes a person under the age of 16 years to whom the worker stands in the place of a parent and a student who is a person to whom the worker stands in the place of a parent.⁴³ A student is a person aged 16 years or above, but under 21 years of age, who is receiving full-time education.⁴⁴

Workers Compensation (Dust Diseases) Act 1942 (NSW)
3.32 The Workers Compensation (Dust Diseases) Act 1942 (NSW) was established to provide compensation to those workers suffering death or disablement from dust diseases. Following the death of a worker from a dust disease, compensation is payable to certain people, including a dependent child of the worker.⁴⁵ For the purposes of the compensation provisions, a reference to a child of a worker includes a child to whom the worker stood in the place of a parent.⁴⁶

Compensation to Relatives Act 1897 (NSW)
3.33 The Compensation to Relatives Act 1897 (NSW) enables an action to be brought against any person causing death through neglect, despite the death of the person injured.⁴⁷ The action is to be brought for the benefit of specified relatives of the deceased, including his or her child.⁴⁸ The definition of child includes any person to whom another stands in loco parentis.⁴⁹

Law Reform (Miscellaneous Provisions) Act 1944 (NSW)
3.34 The Law Reform (Miscellaneous Provisions) Act 1944 (NSW) provides that a person can recover damages for injuries arising from mental or nervous shock. Liability in respect of an injury includes liability for injury arising from mental or nervous shock sustained by a parent or spouse of a person who was killed or injured and by any other member of the family of the person who was killed or injured where he or she saw or heard the death or injury.⁵⁰ The definition of parent includes any person standing in loco parentis to another.⁵¹ The definition of “member of the family” includes a child. “Child” includes any person to whom another stands in loco parentis.⁵²

Sporting Injuries Insurance Act 1978 (NSW)
3.35 The Sporting Injuries Insurance Act 1978 (NSW) establishes a scheme for the payment of benefits to those who are injured or die while participating in sporting or recreational activities⁵³ and to their dependants. In the event of a participant’s death, an application may be made by their legal representative for compensation payable to a dependent child.⁵⁴ The definition of child includes a person to whom the deceased stood in loco parentis immediately before his or her death.⁵⁵

Miscellaneous

Bail Act 1978 (NSW)
3.36 Under the Bail Act 1978 (NSW), certain matters must be taken into consideration when determining whether or not to grant bail to an accused person.⁵⁶ One of these matters is the protection of the close relatives of any person against whom the alleged offence was committed.⁵⁷ Close relative is defined as:

(a) a mother, father, wife, husband, daughter, son, step-daughter, step-son, sister, brother, half-sister or half-brother of the person, or the other party to a domestic relationship to which the person is a party, or

(b) if the person is a party to a domestic relationship, any person who is a relative, of the kind mentioned in paragraph (a), of either party to the relationship.⁵⁸

Coroners Act 1980 (NSW)⁵⁹
3.38 Under the Coroners Act 1980 (NSW), a relative of a person who has or is suspected to have died is defined as the person’s spouse, parent, guardian or child or a person who stands in loco parentis to that person.⁶⁰ Accordingly, a functional parent will be recognised as a relative of his or her child, but a child will not be recognised as a relative of the functional parent. Falling outside the definition is significant, as the Act acknowledges the likelihood of a close relationship between a relative and a deceased person. For example, only a relative is able to request that an inquest be held before a coroner with a jury,⁶¹ is automatically entitled to be represented at an inquest⁶² and can be protected from being identified where he or she is the relative of a person whose death may have been self-inflicted.⁶³

EXISTING OPTIONS FOR ADDITIONAL RECOGNITION

3.39 Although the law only recognises the functional parent/child relationship in a limited range of circumstances, there are certain ways in which that recognition can be supplemented.⁶⁴ However, it is important to note that access to additional recognition differs depending upon whether the functional parent is in an opposite-sex or same-sex relationship with the legal parent.

Adoption

3.40 The step-parent adoption provisions of the Adoption Act 2000 (NSW)⁶⁵ enable a functional parent to adopt the legal child of his or her partner.⁶⁶ However, these step-parent adoption provisions are only available to functional parents in opposite-sex relationships.⁶⁷ “Step-parent” is defined as a person who:

(a) is not a birth parent or adoptive parent of the particular person, and

(b) is married to the particular person’s birth parent or adoptive parent or has had a de facto relationship of 3 or more years duration with the birth parent or adoptive parent.⁶⁸

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

(a) the child is at least 5 years old, and

(b) the step parent has lived with the child and the child’s birth or adoptive parent for a continuous period of not less than 3 years immediately before the application for the adoption order, and

(c) consent has been given by each of the child’s parents and any guardian, and

(d) the court is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the child.⁷⁰

3.44 As same-sex couples are excluded from the ambit of the step-parent adoption provisions, if a functional parent wanted to adopt a child, that would entail severing the relationship between the legal parent and the child. This is clearly not an attractive option. As people in same-sex relationships are not eligible to adopt a child as a couple, there is not the secondary option of the legal parent applying to adopt the child in a joint application with the functional parent.⁷³

Parenting orders under the FLA

3.45 The core principle regarding the care and control of a child is that each of the child’s parents⁷⁴ has legal responsibility for the child.⁷⁵ This legal responsibility is termed “parental responsibility”.⁷⁶ However, a child, his or her parent or grandparent or any other person concerned with the child’s care, welfare or development⁷⁷ can apply to the Family Court to have this altered by way of a parenting order. Parenting orders deal with aspects of parental responsibility, such as who a child can live with,⁷⁸ who can or cannot have contact with a child,⁷⁹ who has maintenance obligations⁸⁰ and who is responsible for the day-to-day care of the child.⁸¹ They confer parental responsibility, or aspects of it, on a person who would not otherwise have any legal connection with a child⁸² and, accordingly, 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.⁸³

3.46 While parenting orders provide a potential means of creating a legal parental relationship between a functional parent and a child, there are some limitations on their efficacy for this purpose. First, 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 consideration⁸⁴ and could potentially conclude that making an order was not in the child’s best interest. Secondly, a parenting order ceases to have effect once the child reaches 18 years of age, marries or enters into a de facto relationship.⁸⁵ Accordingly, these orders do not create an enduring legal parent-child relationship. 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.

AREAS OF NON-RECOGNITION

3.47 As noted above, the functional parent/child relationship is recognised in only a very limited range of circumstances. Set out below is a discussion of some of the areas where the functional parent/child relationship is not recognised.⁸⁶ Rather than compiling an exhaustive list of incidents of non-recognition, we have selected some examples that illustrate the wide-reaching consequences of non-recognition. Indeed, non-recognition potentially affects the lives of functional parents and children from birth until death.⁸⁷

Parental leave

3.48 The Industrial Relations Act 1996 (NSW) provides that certain employees may be entitled to parental leave in connection with the birth of a child.⁸⁸ Maternity leave may be available to a female employee who is pregnant,⁸⁹ while paternity leave may be taken by a male employee in connection with the birth of his child.⁹⁰ A male employee may also take paternity leave in connection with his partner’s pregnancy, even if he is not the biological father.⁹¹ There is no equivalent scope for a female employee to take maternity leave in connection with her partner’s pregnancy.

Day-to-day life

3.49 As discussed above,⁹² the basic position is that the legal parents of a child have parental responsibility for that child. Accordingly, unless the law intervenes, legal parents have responsibility for making decisions about a child’s daily life. However, a functional parent may acquire legal responsibility for a child’s day-to-day care, welfare and development by virtue of a “specific issues” parenting order.⁹³ Unless or until a functional parent obtains a parenting order, he or she will have no legal status to make decisions about a child’s day-to-day life; for example, he or she could not provide consent for a school trip or consent to a doctor providing medical treatment.

Victims compensation

3.50 One of the objects of the Victims Support and Rehabilitation Act 1996 (NSW) is to provide support and rehabilitation for victims of crimes of violence by giving effect to a statutory compensation scheme.⁹⁴ The people eligible to receive statutory compensation are a primary or direct victim,⁹⁵ a secondary victim⁹⁶ and a family victim⁹⁷ of an act of violence.⁹⁸

Secondary victim
3.51 A secondary victim is a person who receives a compensable injury⁹⁹ as a direct result of witnessing an act of violence¹⁰⁰ towards the primary victim. A secondary victim need not have any prior relationship with the primary victim.

3.52 When a legal parent or guardian becomes aware that his or her child has received a compensable injury or died, the parent or guardian is taken to have witnessed the act of violence. A functional parent, however, is eligible for compensation as a secondary victim only if he or she actually witnessed the event.¹⁰¹

3.53 “Parent” is not defined, however the Act does differentiate between “parent” and “step-parent” in a subsequent provision, so it is unlikely that “parent” would extend to a functional parent. “Guardian” is not defined, but a person who had a parenting order conferring responsibility for the long-term welfare of the child would probably be classed as a guardian.

Jonathan learns that Jill, the young daughter of his partner Sara has been fatally shot during an armed robbery. As a direct result, Jonathan suffers a chronic psychological disorder. Because he did not actually witness the event he is not a secondary victim for the purpose of compensation.

 
Family victim
3.54 Family victim is defined as a person who is, at the time the act of violence is committed, a member of the immediate family of a primary victim who has died as a direct result of an act of violence.¹⁰² Unlike secondary victims, a person need not suffer a compensable injury to be classified as a family victim.¹⁰³ A member of the immediate family of a primary victim is defined as:

(a) the victim’s spouse, or

(b) the victim’s de facto spouse, or partner of the same sex, who has cohabited with the victim for at least 2 years, or

(c) a parent, guardian or step-parent of the victim, or

(d) a child or step-child of the victim or some other child of whom the victim is the guardian, or

(e) a brother, sister, step-brother or step-sister of the victim.¹⁰⁴

Commonwealth child support legislation
3.56 The assessment of child support is primarily governed by the Child Support (Assessment) Act 1989 (Cth) (“the CSAA”) and the FLA.¹⁰⁶ The FLA applies where the parents separated or the child was born prior to 1 October 1989. If the separation or childbirth occurred after 1 October 1989, the CSAA is the relevant legislation.¹⁰⁷

3.57 Under both the FLA and the CSAA, parents have the primary duty to maintain their child or children.¹⁰⁸ In practical terms, a parent be ordered to provide financial support for a child. Indeed, under the CSAA, payment of child support can only be sought from a parent. While the FLA does not specify the people from whom child support can be sought,¹⁰⁹ the imposition of the primary child maintenance duty on parents indicates that a parent will be the most likely respondent in an application for child support.

3.58 Despite the emphasis on parental duty in the Commonwealth child support legislation, neither the FLA nor the CSAA comprehensively defines who is a parent. Under the FLA “parent” is only defined in relation to a child who has been adopted; in those circumstances, parent means the adoptive parent. The CSAA takes a similar approach and only defines “parent” in relation to a child who has been adopted or who was artificially conceived.¹¹⁰ In these circumstances, “parent” means an adoptive parent or a person who is legally presumed to be a parent.¹¹¹ Given the absence of any further, general provision defining “parent” as meaning a biological parent, it seemed arguable that a functional parent could be classified as a “parent” under the Commonwealth child support legislation. However, the Full Court of the Family Court in Tobin v Tobin rejected this argument.¹¹² The court held that the class of people who are parents for the purposes of the child support legislation is restricted to legal (that is, biological, adoptive or presumptive) parents.¹¹³

3.59 Under the FLA, step-parents may also have a duty to maintain a child.¹¹⁴ A step-parent is a person who:

(a) is not a parent of the child;

(b) is or has been married to a parent of the child; and

(c) treats, or at any time during the marriage treated, the child as a member of the family formed with the parent.¹¹⁵

It is a reality of life that children are born as a result of a variety of artificial conception procedures, out of non-traditional circumstances, and into non-traditional families. Legislation which deals with the personal and financial responsibility for such children should be clear and exhaustive and should recognise the reality of these situations.¹¹⁶

3.62 The age limits under the PRA are significantly lower that those found in the Commonwealth legislation, where an application for maintenance can be made in relation to a child until he or she turns 18, or marries or enters into a de facto relationship.¹¹⁹ An exception to the Commonwealth age limit may exist if maintenance is necessary to enable a child to complete his or her education¹²⁰ or because of a disability of the child.¹²¹

3.63 A further point of contrast between the PRA and the Commonwealth legislation is that under the PRA, 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 functional parent has an obligation to assist with the financial burden of raising a child, independently of the resident parent’s financial circumstances. Such a discretionary obligation is found in the step-parent provisions of the FLA. The absence of any automatic or discretionary obligation to provide maintenance for a child is particularly striking in the case of lesbian couples who conceive a child through artificial insemination. There is absolutely no legal obligation on the co-mother to maintain her child, unless the resident mother cannot support herself because she is caring for their child.¹²² 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.

Equitable estoppel
3.64 The final way in which a functional parent can be required to provide child support is through the equitable doctrine of promissory estoppel. The potential operation of this doctrine in this context is illustrated by the case of W v G.¹²³

3.65 In W v G, two women had lived together for eight years. During the course of their relationship, they had two children together, conceived by way of artificial insemination. W was the biological mother of their children and following the breakdown of the relationship, the children remained in her care. The case involved an application by W seeking, amongst other matters, a lump sum payment by way of equitable compensation towards the cost of maintaining the two children. As G was not recognised as a parent under the Commonwealth child support legislation and the case predated the 1999 amendments to the PRA, W had to find an alternative legal way to claim child support.

3.66 The key elements in a claim of promissory 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 assist and 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.

3.67 While the doctrine of equitable estoppel may have resolved the dispute in W v G, its application is a highly unsatisfactory way of addressing questions of child support. 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.¹²⁴ The proper focus of a child maintenance application should be the needs of the child.¹²⁵ 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 could have reduced hostility between the parties and may have avoided litigation altogether.¹²⁶

Intestacy and family provision

3.68 In the event that a person dies without leaving a valid will, the Wills, Probate and Administration Act 1898 (NSW) establishes a hierarchy of people who will inherit his or her estate. Legal children are placed near the top of that hierarchy, second only to a spouse.¹²⁷ Functional children are completely omitted from the list. 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.¹²⁸

3.69 Where a functional parent dies intestate, the only option for their child to receive any of the estate is to make a claim under the Family Provision Act 1982 (NSW). There are two ways in which a functional child can be eligible to do this. The first is if the parent was a party to a domestic relationship at the time of his or her death and the child is a child of that relationship.¹²⁹ But if the relationship between the child’s legal and functional parent ended before the death of the functional parent, the child would not be eligible under this head. The second is if the child was or had been dependent on the parent and was or had been a member of his or her household.¹³⁰ In order to show dependence, a child would have to show the existence of something more than an emotional relationship;¹³¹ there must be whole or partial dependence for financial or material needs.¹³² Even where a functional child is eligible to bring a claim, there is, of course, no guarantee that the claim will be successful.

Care of child when a legal parent dies

3.70 The care of a child following the death of one or more of his or her legal parents is addressed by both State and Commonwealth law. In NSW, a legal parent can nominate a person, either in his or her will or in a separate deed, to become the guardian of the child upon his or her death.¹³³ Such an appointed guardian is commonly referred to as a testamentary guardian. If the deceased names a surviving legal parent and another person as a testamentary guardian, the surviving parent and testamentary guardian become joint guardians.¹³⁴ The effect of becoming a guardian is that a person has the full range of parental responsibilities in respect of a child.¹³⁵

Priya is the biological mother of Jake. Sarah is Jake’s functional mother. As Priya conceived Jake through donor insemination, Jake does not have a legal father. In her will, Priya named Sarah as Jake’s testamentary guardian. Following Priya’s death, Sarah acquires all the responsibilities of a legal parent in respect of Jake.

 

3.71 Although a parent can specify a testamentary guardian, there is no guarantee that that person will in fact become a child’s guardian. Under the NSW legislation, the court¹³⁶ has the ability to alter guardianship appointments as it thinks fit¹³⁷ and a surviving parent can oppose the appointment of a testamentary guardian.¹³⁸ An appointment of a testamentary guardian may also be defeated by an application for a parenting order under the FLA. For example, a child’s grandparent could oppose the appointment of a testamentary guardian by applying for a parenting order, which confers full parental responsibility.¹³⁹

Joan and Janine had a daughter, Kristen, whom Joan conceived through artificial insemination. At the time Kristen was born, Joan and Janine had been living together for 8 years. When Kristen was 5 years old, Joan died after a long illness. Janine commenced proceedings to obtain parental responsibility for Kristen. However, Joan’s parents began identical proceedings. Years of uncertainty for Kristen and court battles followed before Janine was finally granted parental responsibility.

 

3.72 Where a legal parent dies without appointing a testamentary guardian, a surviving parent will continue to have the parental responsibility that is conferred upon parents by section 61C of the FLA. If a functional parent wishes to obtain parental responsibility, he or she has to apply to the Family Court for a parenting order. Even where there is no surviving legal parent, the law gives no automatic recognition to the functional parent/child relationship.¹⁴⁰

Human Tissue Act 1983 (NSW)

3.73 The Human Tissue Act 1983 (NSW) (“the HTA”) governs tissue removal, blood donation and post-mortem examinations. Tissue can only be removed from a child for the purpose of transplantation to the body of the child’s parent or sibling and with the written consent of the child’s parent.¹⁴¹ “Parent” is defined as including a step-parent or adoptive parent of the child.¹⁴² It is implicit that a functional parent would not be defined as a parent for the purposes of the HTA. Parental consent is also required for the removal of blood from a child for the purpose of donation. However, a guardian may also provide the necessary consent.¹⁴³ While “guardian” is not defined, a functional parent who had a parenting order conferring responsibility for a child’s long-term welfare may be considered to be a child’s guardian.

3.74 Where a child has died, the HTA provides that his or her “senior next of kin” can consent to the removal of tissue from his or her body¹⁴⁴ and to the undertaking of a post-mortem examination.¹⁴⁵ “Senior next of kin” is defined, in relation to a child, as:

(a) a parent of the child,

(b) where a parent of the child is not available, a brother or sister of the child, being a brother or sister who has attained the age of 18 years, or

(c) where no person referred to in subparagraph (a) or (b) is available, a person who was a guardian of the child immediately before the death of the child.¹⁴⁶

Coroners Act 1980 (NSW)

3.76 The Coroners Act 1980 (NSW) also excludes functional parents from decision-making with respect to a post-mortem examination of the deceased child. Again, senior next of kin have the right to object to a post-mortem examination being carried out on the deceased, whether the deceased was an adult or child.¹⁴⁸ “Senior next of kin” is defined as:

(a) the deceased person’s spouse, or

(b) if the deceased person did not have a spouse or a spouse is not available, any of the deceased person’s sons or daughters who are of or above the age of 18 years, or

(c) if the deceased person did not have a spouse, son or daughter or a spouse, son or daughter is not available, either of the deceased person’s parents, or

(d) if the deceased person did not have a spouse, son, daughter or living parent or a spouse, son, daughter or parent is not available, any of the deceased person’s brothers or sisters who are of or above the age of 18 years, or

(e) if the deceased person did not have a spouse, son, daughter, living parent, brother or sister or a spouse, son, daughter, parent, brother or sister is not available:


(i) any person who is named as an executor in the deceased person’s will, or
(ii) any person who was the deceased person’s personal representative immediately before the deceased person’s death.¹⁴⁹

Distribution of superannuation funds following death

3.78 The primary statute regulating superannuation funds is the Superannuation Industry (Supervision) Act 1993 (Cth). Under this Act, a regulated superannuation fund must be maintained solely for certain specified purposes.¹⁵⁰ One of the specified purposes is the provision of death benefits to a contributing member’s legal representative and/or dependant(s), following the death of the member.¹⁵¹ “Dependant” is defined as including a person’s spouse and child, who are in turn defined as including an opposite-sex de facto partner and adopted child, step-child or ex-nuptial child.¹⁵² As the definition of “dependant” is inclusive, rather than exclusive, a person who was financially dependent on the member will also be treated as a dependant for the purposes of death benefits.¹⁵³ A significant effect of receiving death benefits as a dependant is that a tax concession is received, which provides a financial benefit. In order for a functional child to be able to receive death benefits with a tax concession, he or she must have been financially dependent on the deceased member. This contrasts with the automatic classification of biological, adopted or step-children as dependants.

OPTIONS FOR REFORM

3.79 The above discussion clearly shows a widespread lack of recognition of the functional parent/child relationship. In the context of same-sex relationships, this lack of recognition is compounded by the inability to create a legal parent/child relationship through adoption. It also precludes the application of a parentage presumption.¹⁵⁴ Accordingly, consideration should be given to whether the laws relating to adoption by same-sex parents and the legal parentage of children conceived through donor insemination should be reformed.

3.80 Of course, parents and children who develop a functional relationship in the context of a heterosexual adult relationship may also be unable to legalise their relationship if a second legal parent objects to a step-parent adoption or certain adoptive criteria cannot be met. Alternatively, they may not wish to enter into the adoptive process, just as their counterparts in same-sex couples may choose not to do so. Whether there are current areas of non-recognition that should be reformed warrants consideration. For example, we need to consider whether it is appropriate that a child is omitted from the list of persons eligible to inherit if his or her functional parent dies intestate.

Step-parent adoption by a lesbian or gay functional parent

3.81 As noted above,¹⁵⁵ a lesbian or gay functional parent is unable to adopt his or her partner’s legal child under the current and pending step-parent adoption provisions. In its 1997 Review of the Adoption of Children Act 1965 (NSW),¹⁵⁶ the Commission recommended that the step-parent adoption provisions be amended to include a step-parent in a same-sex de facto relationship.¹⁵⁷ Although many of the recommendations from that review were accepted by the Government, the recommendation regarding same-sex couples was not implemented.¹⁵⁸

3.82 The Commission is of the view that this issue should be revisited, not in the general context of adoption law, but in the specific context of disadvantages faced by children living in non-traditional relationships. As noted in the Social Issues Committee Report, the exclusion of lesbians and gay men from the adoption provisions remains a point of concern when considering children who are living in non-traditional families.¹⁵⁹

Jurisdictions where lesbian or gay step-parent adoption is permitted
3.83 Same-sex couples have been able to adopt children in the Canadian province of British Columbia since 1996.¹⁶⁰ Other Canadian provinces have extended step-parent adoption to same-sex couples through case law rather than legislative amendment. In Alberta, the term “step-parent” is not defined for the purposes of the step-parent adoption provisions of the Child Welfare Act 1984. However, the Court of Queen’s Bench has held that “step-parent” includes a partner in a same-sex relationship who seeks to adopt a child of his or her partner.¹⁶¹ The Ontario Court of Justice has also held that same-sex couples have the right to apply for joint adoption.¹⁶²

3.84 In several countries, the legal recognition of same-sex relationships acknowledges that adults in same-sex relationships have families. Since 1 July 1999, a person in a registered partnership in Denmark may apply for step-parent adoption of the other partner’s child.¹⁶³ Similarly, since 8 May 2000, any person in a registered relationship in Iceland can adopt the child of his or her partner, provided the child’s other parent does not have custody claims.¹⁶⁴ An equivalent law came into force on 23 June 2000 in the Spanish autonomous region of Navarra where all registered couples, including same-sex couples, can adopt children.¹⁶⁵ Legislation has been introduced into the Swedish Parliament which would enable registered same-sex couples to adopt children.¹⁶⁶ In January 2001, legislation was introduced in Norway that would permit a registered partner to adopt her or his partner’s legal child.¹⁶⁷

3.85 In the Netherlands, step-parent adoption provisions have applied to same-sex couples since April 2001, irrespective of whether they have registered their relationship or married.¹⁶⁸ To be eligible to adopt his or her partner’s child, a functional parent must have been living with the child’s legal parent for at least three years and must have cared for the child for at least one year. Where a child is conceived in the context of a lesbian relationship, the non-biological mother can apply to adopt the child immediately after the birth.¹⁶⁹

3.86 Adoption laws vary widely from state to state in the USA. However, certain states allow same-sex couples to adopt children in a step-parent adoption context. The first step-parent adoption was granted to a lesbian couple in 1985, by a trial judge in Alaska.¹⁷⁰ Since then, many courts have granted similar adoptions.¹⁷¹ In Vermont, same-sex couple adoption is permitted by statute.¹⁷²

What are the advantages or disadvantages of step-parent adoption?
3.87 As the child is already in the permanent care of his or her legal parent and step-parent, the crucial question is whether there are any circumstances in which an adoption order in favour of a step-parent will serve the child’s interests better than any alternative order, such as a parenting order, or maintaining the status quo. The reasons in favour of step-parent adoption include:

• to give the child automatic inheritance rights from the step-parent and to address other similar areas of non-recognition;
• to give the parenting relationship permanency;
• to confer full parental rights and obligations on the step-parent, which is of particular relevance if the legal parent with whom the child resides should die;
• to strengthen relationships within the new family;
• to express the step-parent’s commitment to the child.

• a child may feel rejected by the legal parent who is relinquishing parental rights;
• a child may fear losing the relinquishing parent;
• a child would lose the right to inherit automatically from the relinquishing parent and that parent’s extended family.

3.90 In the final analysis, the Commission considered that an order for adoption in favour of a step-parent is often an inappropriate way to promote a child’s best interests and generally should not be encouraged. However, it acknowledged that there could be circumstances in which a step-parent adoption is in a child’s best interest. Currently, children who have a lesbian or gay step-parent are denied the opportunity to be adopted, when adoption by the step-parent may be in the child’s best interests.

ISSUE 7

The current and pending step-parent adoption provisions should be amended to include lesbian and gay step-parents.

3.91 We consider that the status of a lesbian co-mother should be examined separately from the issue of step-parent adoption. The central reason for this view is the inconsistent application of the parentage presumption to children conceived through artificial insemination. Children conceived in the context of a heterosexual relationship receive the advantage of two legal parents while children conceived in the context of a lesbian relationship face the disadvantage of having one legally invisible parent.¹⁷⁴ We note that the disadvantages flowing from non-recognition are particularly harsh for children who only have one legal parent, which will inevitably be the case where a child has a birth mother and a co-mother.

Presumption of parentage¹⁷⁵
3.92 Where a woman with a male partner conceives through artificial insemination, her partner is presumed under the Status of Children Act 1996 (NSW) to be the child’s father.¹⁷⁶ This presumption is intended to remove any liabilities and rights from the sperm donor and to transfer all legal rights and responsibilities to the woman who has undergone the procedure and her consenting male partner.¹⁷⁷ Essentially, the presumption was adopted to define the rights of people using fertility treatments and the children who are born as the result of such treatments.

3.93 Prior to the enactment of the Artificial Conception Act 1984 (NSW), a child who was conceived through artificial insemination would have been the legal child of the sperm donor. Accordingly, the child could assert legal rights, such as a right to maintenance or testamentary rights, against the donor.¹⁷⁸ This was clearly an undesirable position. In addition, the child would have faced the same barriers of non-recognition as those children with functional parents face today. There was the further issue of the child being ex nuptial.¹⁷⁹ This led not only to social stigma but also to the position that if the child’s parents separated, any disputes over custody and maintenance would have to be held in the State courts, because the Family Court did not have jurisdiction to deal with ex-nuptial children.¹⁸⁰

3.94 These problems were avoided by the parentage presumption, so that the child conceived through fertilisation procedures suffered no legal disadvantage or social stigma. During the Second Reading Speech of the Artificial Conception Bill and Children (Equality of Status) Amendment Bill, the then Minister for Youth and Community Services stated:

As legislators we have a responsibility to reform those parts of the law that fail to adapt to the changing circumstances of modern society. Quite clearly, the legal position of children conceived by AID is an area requiring legislative attention, and I am sure that even those who have personal objections to the use of this form of treatment would not wish to leave these children in the legal limbo in which they are now placed.¹⁸¹

The principle bill seeks to make the normal natural patterns of bonding legally acceptable. I do not think the significant element in child rearing and in having children is the act that creates the children. For many people that act is the major part of their life, but there is a great deal more to children than child rearing and being a parent as a result of one act.¹⁸²

Applying the parentage presumption to co-mothers
3.97 The question must be asked whether it is appropriate to apply the presumption in the context of lesbian relationships, with the effect 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.

3.98 As the reasons underlying the application of the presumption in a heterosexual context, namely avoidance of legal disadvantage and giving effect to an intention to be a parent of the child, are equally applicable in a lesbian context, it is difficult to identify any reason why the presumption should not be extended.¹⁸⁶ A similar proposal was made in Sweden by the Commission on the Situation of Children in Homosexual Families and that this proposal has been supported by the Minister of Justice.¹⁸⁷

Adoption
3.99 Enabling a co-mother to adopt her child, while retaining the legal relationship between the child and his or her birth mother, would address the disadvantages currently faced by children of lesbian couples. This could be achieved by extending the step-parent adoption provisions discussed above at para 3.81-3.89. However, it would be appropriate to remove the requirements that the child is older than 5 years old and has lived with the prospective adoptive parent for at least three years. This model would be similar to that enacted in the Netherlands in April 2001.¹⁸⁸ Adoption would then be available immediately as a means of creating a legal parent/child relationship.

3.100 While a modified step-parent adoption provision would potentially address the disadvantage flowing from non-recognition, it requires action on the part of the child’s mothers for that to occur. Where a child’s mothers did not apply for adoption, the child would still face the current disadvantages.

Madeleine and Fiona have been in a relationship for 5 years and decide that they would like to have a child together. They choose to conceive a child through the use of artificially inseminated donor sperm. After much consideration, they decide that Fiona will be the birth mother. Madeleine intends to adopt their son, Colin, as soon as she is able to do so following his birth. However, the first few months after Colin is born are a busy and exhausting period for Fiona and Madeleine and they delay applying for an adoption order. Before Madeleine follows up her intention to adopt Colin, Fiona dies in a car accident. Colin is left with no legal parent.

 

ISSUE 8

Should a lesbian co-mother be presumed to be the legal parent of her child? Why or why not?

Should a lesbian co-mother be able to adopt her child under modified step-parent adoption provisions? Why or why not?

Is there any other way of recognising the relationship between a co-mother and her child?

3.101 Where a functional parent is not able to, chooses not to or simply does not create a legal parental relationship with his or her child, the disadvantages flowing from non-recognition of the relationship will persist. In this section, we give consideration to whether it may be appropriate to recognise a functional parent/child relationship in legal areas where it is currently invisible. The approach that we propose is to examine the purpose of the law in question and to assess whether recognition of a functional parent or child would be consistent with that purpose.¹⁸⁹

3.102 The concept of a functional parent/child relationship will encompass a broad spectrum of relationships. For example, an adult may act as a parent towards his or her partner’s legal child, sharing in the day-to-day care of the child, but may not consider having any long-term responsibility for the child. This type of functional parent/child relationship may arise where there is a second legal parent who shares long-term responsibility with the resident legal parent. In such a situation it may be appropriate to recognise the functional parent/child relationship only in a limited range of fields. Alternatively, an adult may view a child as if the child was his or her legal child. In such a situation, the adult may intend to have a role in both the child’s day-to-day care and long-term welfare. It will be necessary to accommodate qualitative differences in the functional parent/child relationship when considering whether to extend recognition in particular legal areas.

3.103 Rather than examine every area of non-recognition identified above, we have selected the laws of child support and intestacy as examples of how this exercise could be conducted. The Social Issues Committee identified child support as an area in need of prompt attention.¹⁹⁰

Child support
3.104 The principal object of the child support provisions in both the FLA and the Child Support (Assessment) Act 1989 (Cth) is to ensure that children receive a proper level of financial support from their parents.¹⁹¹ This object is reflected in the imposition on parents of the primary duty to maintain a child.¹⁹² 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 parentage¹⁹³ or their acceptance of that responsibility through adoption. The view that there is a parental obligation to support children has existed for many years. Blackstone’s Commentaries stated that:

The duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation … laid on them not only by nature itself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave their children life, that they might afterwards see them perish. By begetting them, therefore, they have entered into a voluntary obligation, to endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserved.¹⁹⁴

3.106 In the Commission’s view, consideration should be given to whether 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. Where a woman has consented to her female partner conceiving a child through artificial insemination, with the intent of being a parent to the child, it is arguable that she should attract an automatic obligation to support the child. Certainly, in terms of public policy, it seems appropriate that a co-mother bears the financial cost of caring for a child, rather than that cost falling on the state. Accordingly, our provisional view is that there should be an obligation imposed upon co-mothers to provide financial support for their children.

3.107 As noted above, step-parents may have a duty to maintain a child under the FLA. 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 maintenance obligation are:

(a) the objects of the child maintenance provisions and the primary duty of a child’s legal parents to maintain the child;

(b) the length and circumstances of the marriage to the relevant parent of the child;

(c) the relationship that has existed between the step-parent and the child;

(d) the arrangements that have existed for the maintenance of the child; and

(e) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.¹⁹⁶

3.109 A step-parent, having formed a relationship with the natural parent, becomes part of a new family and in doing so he or she generally takes on all the rights and responsibilities (social, emotional or financial) of a natural parent. Once a step-parent has assumed a parental role, he or she should not simply be permitted to waive all responsibilities if the relationship breaks down. This is especially so if the relationship is a lengthy one.

3.110 Perhaps an argument could be made that the step-parent should be estopped from denying his or her responsibilities. However, it should be noted that the step-parent situation may be different to that of a co-mother situation¹⁹⁸ especially if the two women agree to have the children after their relationship has commenced. In contrast, a step-parent has no role in the decision to have the child in a step-family, this decision having been made by the natural parents. Further, it may be unfair or inappropriate to cut all ties between the child and the other non-resident natural parent.

3.111 The act of forming a de facto family, like the act of procreation, may reasonably give rise to economic responsibility for the children.¹⁹⁹ There is concern that the State will be left to support the children of broken relationships. 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.”²⁰⁰

3.112 It is necessary to consider whether a functional parent who is in a de facto relationship with a child’s legal parent should have a similar discretionary, secondary obligation to maintain the child. Our provisional view is that the policy underlying the step-parent maintenance obligation is equally applicable in the context of unmarried step-parents. The discretionary nature of the obligation would accommodate the potential qualitative differences in functional parent/child relationships.

ISSUE 9

Should an automatic duty to maintain a child be imposed upon co-mothers? Why or why not?

Should there be a statutory provision, equivalent to the step-parent provisions of the FLA, imposing a discretionary child support duty on a functional parent who has been in a domestic relationship with a child’s legal parent?

3.114 The existing intestacy provisions reflect a traditional view of family. As has been discussed, many different family structures now exist in NSW, including those where a functional parent/child relationship exists. It is necessary to consider whether the intestacy provisions should reflect the current diversity of family structures, and therefore include functional children in the statutory list of beneficiaries. The central question is whether omitting functional children from the list of beneficiaries is consistent with the goals of the intestacy provisions. This question could be rephrased in the following terms:

(1) In the event that he or she died intestate, is it likely that a functional parent would want his or her child to receive a share of the property?

(2) Is a child likely to need a share of his or her functional parent’s estate in the event of the parent’s death?

3.115 It is arguable that omitting functional children from the list of beneficiaries is inconsistent with the goals of the intestacy provisions. However, as discussed above, a functional parent/child relationship can exist in a diverse range of circumstances. For example, the relationship between an adult who has been in a de facto relationship with a child’s legal parent for two years and who has, over that time, come to act as a parent to the child may be quite qualitatively different to the functional parent/child relationship that exists between a co-mother and her 15 year old daughter. It may be appropriate to add to the list of beneficiaries extant functional parent/child relationships of a specified minimum duration.²⁰⁵

ISSUE 10

Should there be an examination of all the areas of non-recognition of the functional parent/child relationship with the goal of assessing whether the lack of recognition is consistent or inconsistent with the purpose of the law in question?

If a comprehensive statute audit is not undertaken, are there any particular areas, such as intestacy, that should be examined?

1. The terminology in this chapter is explained at para 3.6-3.9.

2. NSW Legislative Council Standing Committee on Social Issues, Domestic Relationships: Issues for Reform (Report 20, Parliamentary Paper 127, 1999) (“Social Issues Committee Report”) at 77, 82, 83.

3. The Social Issues Committee’s use of the phrase “non-biological parent” equates to our use of “functional parent”, which is defined at para 3.7-3.9.

4. Social Issues Committee Report at 82.

5. Social Issues Committee Report at 82.

6. See para 1.16-1.18 for an outline of the social context of this review.

7. N Polikoff, “This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Non-traditional Families” (1990) 78 Georgetown Law Journal 459 at 469.

8. Adoption Act 2000 (NSW) s 95.

9. See, for example, Status of Children Act 1996 (NSW) s 14 and Family Law Act 1975 (Cth) s 69P-s 69U.

10. This point is discussed further at para 3.79-3.115.

11. Commonwealth Powers (Family Law-Children) Act 1986 (NSW).

12. For instance, 18.2% of all children under 15 were living in single parent families in 2000 and 20.9% of all families have only one parent: Australian Bureau of Statistics, Australian Social Trends 2001 (Cat No 4102.0) at 34.

13. Of course, a child could have more than one functional parent. For example, a child may retain a relationship with a functional parent following the breakdown of a relationship between their legal parent and that functional parent and may subsequently come to view another partner of their parent as a functional parent.

14. A male partner of a woman who conceives a child through artificial insemination is legally presumed to be the father of the child: Status of Children Act 1996 (NSW) s 14.

15. P Ettelbrick, “Who is a Parent? The Need to Develop a Lesbian Conscious Family Law” (1993) 10 New York Law School Journal of Human Rights 513 at 517.

16. As discussed below, a sperm donor is not a legal parent.

17. Both marriage and de facto relationships qualify: Status of Children Act 1996 (NSW) s 14(6).

18. The terminology in the relevant legislation, the Status of Children Act 1996 (NSW), is “fertilisation procedure”, which would include other forms of assisted reproduction.

19. Status of Children Act 1996 (NSW) s 14. Note that where the male donor is in a de facto relationship with a woman at the time of sperm donation and embryo creation, but that relationship has ended by the time the woman becomes pregnant, he is not deemed to be the legal parent of the resulting child: Ganter v Whalland (2001) 28 Fam LR 260 (Campbell J).

20. Status of Children Act 1996 (NSW) s 14(1)(a).

21. This is not an exhaustive listing of areas of recognition.

22. A discussion of the impact of the PRA on functional children is found in J Millbank and K Sant, “A Bride in Her Every-Day Clothes: Same Sex Relationship Recognition in NSW” (2000) 22 Sydney Law Review 181.

23. See PRA s 5(1) and para 2.19 for the definition of domestic relationship.

24. PRA s 5(3).

25. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 3.

26. These are discussed below at para 3.45-3.46.

27. PRA s 17.

28. “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, the Hon J W Shaw QC MLC, Attorney General, Second Reading Speech at 229.

29. See discussion below at para 3.27-3.38.

30. PRA s 17, s 20.

31. PRA s 27, s 30, s 33.

32. PRA s 17(1).

33. 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).

34. PRA s 20(1)(b).

35. PRA s 27(1)(a). See also ch 8.

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

37. Family Provision Act 1982 (NSW) s 9.

38. Family Provision Act 1982 (NSW) s 6.

39. Trustee Act 1925 (NSW) s 45.

40. Workers Compensation Act 1987 (NSW) s 25.

41. Workers Compensation Act 1987 (NSW) s 25(5).

42. Workers Compensation Act 1987 (NSW) s 37.

43. Workers Compensation Act 1987 (NSW) s 37(7).

44. Workers Compensation Act 1987 (NSW) s 37(7).

45. Workers Compensation (Dust Diseases) Act 1942 (NSW) s 8(2B).

46. Workers Compensation (Dust Diseases) Act 1942 (NSW) s 8(2B)(e).

47. Compensation to Relatives Act 1897 (NSW) s 3.

48. Compensation to Relatives Act 1897 (NSW) s 4.

49. Compensation to Relatives Act 1897 (NSW) s 7.

50. Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 4(1).

51. Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 4(5).

52. Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 4(5).

53. The scheme is limited to participation as a registered participant in an authorised activity: Sporting Injuries Insurance Act 1978 (NSW) s 19(1), s 19(2).

54. Sporting Injuries Insurance Act 1978 (NSW) s 19(2), s 26.

55. Sporting Injuries Insurance Act 1978 (NSW) s 26(1)(b).

56. Bail Act 1978 (NSW) s 32.

57. Bail Act 1978 (NSW) s 32(1)(b)(ii). The protection of close relatives may also be relevant to the imposition of bail conditions: Bail Act 1978 (NSW) s 37.

58. Bail Act 1978 (NSW) s 4(1).

59. Although there is some recognition of a functional parent/child relationship in the Coroners Act 1980 (NSW), there is a lack of recognition in the post mortem provisions and this is discussed in the context of areas of non-recognition, at para 3.74-3.75.
60. Coroners Act 1980 (NSW) s 4(1).

61. Coroners Act 1980 (NSW) s 18; unless requested an inquest is held without a jury: s 18(1).

62. Unless there are exceptional circumstances: Coroners Act 1980 (NSW) s 32.

63. Coroners Act 1980 (NSW) s 44.

64. We note that additional recognition is conferred following the marriage of a functional parent and legal parent, pursuant to which the functional parent becomes a step-parent. However, we have not considered this matter as it is not within the context of non-traditional relationships.

65. This Act was assented to on 9 November 2000, but had not commenced at the date of publication of this paper. The legislation currently in force is the Adoption of Children Act 1965 (NSW).

66. It should be noted that step-parent adoptions are not a common occurrence: in 1999-2000, there were only 114 adoptions by step-parents in Australia: Australian Institute of Health and Welfare, Adoptions Australia 1999-00 (AIHW Cat No CWS 12, Canberra, Child Welfare Series No 26).

67. A similar restriction exists under the Adoption of Children Act 1965 (NSW).

68. Adoption Act 2000 (NSW) Dictionary.

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

70. 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.

71. Adoption Act 2000 (NSW) s 95(3).

72. Adoption Act 2000 (NSW) s 95(2).

73. In its review of the Adoption of Children Act, the Commission recommended that same-sex couples be eligible to adopt a child as a couple and be included within the ambit of the step-parent provisions: NSW Law Reform Commission, Review of the Adoption of Children Act 1965 (NSW) (Report 81, 1997) at Recommendation 58 and para 6.119.

74. Being biological, adoptive or presumptive parents.

75. FLA s 61C(1).

76. FLA s 61B defines the term “parental responsibility”.

77. FLA s 65C.

78. FLA s 64B(2)(a). Such an order is a “residence order”: FLA s 64B(3).

79. FLA s 64B(2)(b). Such an order is a “contact order”: FLA s 64B(4).

80. FLA s 64B(2)(c). Such an order is a “child maintenance order”: FLA s 64B(5).

81. FLA s 64B(2)(d). Such an order is a “specific issues order”: FLA s 64B(6). Specific issues orders can cover any aspect of parental responsibility.

82. 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).

83. Joint parenting orders have been granted to lesbian couples: 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».

84. FLA s 65E.

85. FLA s 65H(2).

86. A discussion of the areas of non-recognition as at 1998 can be found in J Millbank, “If Australian Law Opened its Eyes to Lesbian and Gay Families, What Would it See?” (1998) 12(2) Australian Journal of Family Law 99. See also J Millbank and K Sant, “A Bride in Her Every-Day Clothes: Same Sex Relationship Recognition in NSW” (2000) 22 Sydney Law Review 181.

87. For an overview of the research on gay and lesbian families and the impact of the current laws, see J Millbank, Meet the Parents (Gay and Lesbian Rights Lobby (NSW), January 2002).

88. Industrial Relations Act 1996 (NSW) s 53-s 72.

89. Industrial Relations Act 1996 (NSW) s 55(2).

90. Industrial Relations Act 1996 (NSW) s 55(3).

91. Industrial Relations Act 1996 (NSW) s 55(3).

92. At para 3.45.

93. FLA s 64B(6).

94. Victims Support and Rehabilitation Act 1996 (NSW) s 3(a).

95. Defined in Victims Support and Rehabilitation Act 1996 (NSW) s 7.

96. Defined in Victims Support and Rehabilitation Act 1996 (NSW) s 8.

97. Defined in Victims Support and Rehabilitation Act 1996 (NSW) s 9.

98. Defined in Victims Support and Rehabilitation Act 1996 (NSW) s 6.

99. A compensable injury is an injury specified in Schedule 1 to the Victims Support and Rehabilitation Act 1996 (NSW); Victims Support and Rehabilitation Act 1996 (NSW) s 10.

100. The act of violence must be one which results in a compensable injury to, or death of, the primary victim; Victims Support and Rehabilitation Act 1996 (NSW) s 8(1).

101. Prior to the Family Law Reform Act 1995 (Cth), which removed the concept of guardianship, s 63E of the FLA defined a guardian as a person who had responsibility for a child’s long-term welfare.

102. Victims Support and Rehabilitation Act 1996 (NSW) s 9(1).

103. Victims Support and Rehabilitation Act 1996 (NSW) s 9(2).

104. Victims Support and Rehabilitation Act 1996 (NSW) s 9(3).

105. An overview of child support in the context of functional parent/child relationship can be found in J Millbank and K Sant, “A Bride in Her Every-Day Clothes: Same Sex Relationship Recognition in NSW” (2000) 22 Sydney Law Review 181 at 209-210.

106. The PRA also touches on child maintenance; this is discussed below at para 3.61-3.63.

107. Unless support is being sought from a step-parent, in which case the FLA is the relevant statute.

108. FLA s 66C(1); CSAA s 3.

109. The term “respondent” is used in the legislation.

110. CSAA s 5.

111. FLA s 60H.

112. Tobin v Tobin (1999) 150 FLR 185.

113. This supports the finding of the Family Court in the earlier decision: Re B and J (1996) 135 FLR 472.

114. 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.

115. FLA s 60D.

116. Re B and J (1996) 135 FLR 472 at 483.

117. At para 3.26.

118. PRA s 27(1)(a).

119. FLA s 66L(1), s 66V. CSAA s 24.

120. FLA s 66L(1)(a), s 66L(2)(a). CSAA s 151B.

121. FLA s 66L(1)(a), s 66L(2)(b).

122. This situation has been addressed using the doctrine of equitable estoppel; see below.

123. 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.

124. D Sandor, “Paying for the Promise of Co-Parenting – A Case of Child Maintenance in Disguise? (1996) 43 Family Matters 24 at 26.

125. Sandor at 26.

126. Sandor at 26.

127. Wills, Probate and Administration Act 1898 (NSW) s 61B.

128. 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.

129. Family Provision Act 1982 (NSW) s 6(1).

130. Family Provision Act 1982 (NSW) s 6(1).

131. Benney v Jones (1991) 23 NSWLR 559 at 560, 565-566.

132. Re Fulop (1987) 8 NSWLR 679 at 682.

133. Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) s 14.

134. Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) s 13. However, the parent has the right to object to the appointment of a guardian: s 14(3).

135. As “guardian” is not defined in the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW), it follows that the common law meaning of the term was intended to apply: see R Atherton, “Testamentary Guardianship and the Reference of Powers over Children: A problem in search of a solution, or who gets to look after the kids?” (1989) 3 Australian Journal of Family Law 236 at 240.

136. Being either the Supreme Court or the District Court: Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) s 2.

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

138. Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW) s 14(3).

139. The FLA provides that anyone who is concerned with the care, welfare or development of a child can apply for a parenting order: s 65C.

140. We note that there is some uncertainty as to whether the FLA provisions supersede the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW), with the effect being that unless a person is a child’s legal parent, they require a parenting order to be a guardian/have parental responsibility, irrespective of appointment as a testamentary guardian.

141. Human Tissue Act 1983 (NSW) s 10.

142. Human Tissue Act 1983 (NSW) s 4.

143. Human Tissue Act 1983 (NSW) s 20.

144. Human Tissue Act 1983 (NSW) s 23.

145. Human Tissue Act 1983 (NSW) s 28.

146. Human Tissue Act 1983 (NSW) s 4.

147. Unless that parent is also a guardian.

148. Coroners Act 1980 (NSW) s 48A.

149. Coroners Act 1980 (NSW) s 4(1).

150. Superannuation Industry (Supervision) Act 1993 (Cth) s 62.

151. Superannuation Industry (Supervision) Act 1993 (Cth) s 62(1).

152. Superannuation Industry (Supervision) Act 1993 (Cth) s 10.

153. Many Trust Deeds expand on the s 10 definition of “dependant” by including any person who was “wholly or partially financially dependent” on the member; see, for example, Faull v Superannuation Complaints Tribunal [1999] NSWSC 1137; Phillips v Newcastle Permanent Custodians Pty Ltd (NSW, Supreme Court, No 2943/98, Hodgson CJ, 9 July 1998, unreported).

154. For example, see Status of Children Act 1996 (NSW) s 14.

155. At para 3.40.

156. NSWLRC Report 81.

157. NSWLRC Report 81 at recommendation 58 and para 6.119.

158. We note that the Commission’s recommendation was not considered by the government as the then Community Services Minister stated that he had made a personal decision not to consider the recommendation and did not take the proposal to Cabinet: Social Issues Committee Report at 80.

159. Social Issues Committee Report at 79-81.

160. The provision is gender neutral, stating that an adult may apply to become a parent of a child jointly with a birth parent of the child: Adoption Act 1996 (RSBC) s 29(2).

161. Re A (1999) Alta DJ 692. See also C Barillas, “Alberta Issues Precedent-Setting Adoption Ruling” (29 November 1999) «www.datalounge.com/datalounge/news/record.html?record=4893».

162. Re K (1995) 15 RFL (4th) 129. For a detailed discussion of this decision, see D Sandor, “Same-Sex Couples Can Adopt in Ontario: The Canadian Case of Re K and its Significance to Australian Family Law” (1997) 11 Australian Journal of Family Law 23.

163. Danish Registered Partnership Act 1989 s 4. During the portion of 1999 that such adoptions were permitted, there were 61 such adoptions: N Polikoff, “Recognizing Partners but not Parents: Gay and Lesbian Family Law in Europe and the United States” (2000) 17 New York Law School Journal of Human Rights 711 at fn 32.

164. This was an amendment to the 1996 registered partnerships legislation: «www.lbl.dk/artikler/artikler/euroletterartikler/e180_2».

165. International Gay and Lesbian Human Rights Commission, “All Registered Couples Can Adopt Children” «www.iglhrc.org/world/ w_eur/Spain2000Jun». There does not appear to be a separate step-parent adoption provision.

166. See C J Williams, “Sweden Seeks to Bolster Gay Couples’ Right to Adopt” Los Angeles Times (24 February 2002). This follows from a January 2001 recommendation by the Swedish Parliament’s Committee on Homosexuality and Children: Polikoff (2000) at 722.

167. Polikoff (2000) at 721.

168. On 21 December 2000, legislation was passed, amending Book 1 of the Civil Code. The Act entered into force on 1 April 2001. Staatsblad van het Koninkrijk der Nederlanden 2001 nr 10. An unofficial English translation of the Act is available at «www.ruljis.leidenuniv.nl/user/cwaalddij/www/NHR/transl-adop». An explanation of the effect of the legislation is available at «www.minjust.nl:8080/a_beleid/fact/adoptsam».

169. The requirement of at least three years co-habitation still applies.

170. Polikoff (2000) at 731.

171. Polikoff (2000) at 731-734.

172. Vermont Stat Ann Tit 15A 1-102 (b) (Supp 2000).

173. Most of these disadvantages are only relevant where there is a second legal parent and where a second legal parent is alive.

174. Or, as the law currently stands, one parent whose visibility is inconsistent.

175. We note that it is outside the Terms of Reference to consider the basic operation of the presumption. Accordingly, we have not addressed issues such as the right of a child to know their genetic origins, etc.
176. Unless he can prove that he did not consent to the procedure: s 14(1)(a).

177. 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.

178. Kovacs at 142.

179. W R Atkin and C A Bridge, “Establishing Legal Relationships: Parents and Children in England and New Zealand” (1996) 17 New Zealand Universities Law Review 12 at 18.

180. The definition of child of a marriage originally excluded ex-nuptial children; the FLA was subsequently amended to incorporate ex-nuptial children within the definition of child of a marriage.

181. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 21 November 1983, the Hon F Walker at 3451-3452.

182. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 21 February 1984, the Hon Dr A Refshauge at 4437.

183. Kovacs at 142.

184. UK, Department of Health and Social Security, Report of the Committee of Inquiry into Human Fertilization and Embryology (1984) Chairperson Dame Mary Warnock.

185. Australia, Family Law Council, Creating Children: A uniform approach to the law and practice of reproductive technology in Australia (AGPS, Canberra, 1985) at 49.

186. We note that even if the legislation were amended, it would still operate only for children born after the amending legislation.

187. Polikoff (2000) at 723.

188. See para 3.85.

189. We note that if a full statute audit was to be done for adult personal relationships, it would be appropriate for a similar audit to be done for parent/child relationships: eg when should legal parental status be necessary, when will legal parental responsibility be enough, when will functional parental status have consequences.

190. The Social Issues Committee recommended that “the NSW Minister for Community Services approach her Federal counterpart to request that the child support legislation be amended so that it applies to same-sex co-parents in the same way as it currently applies to opposite sex parents and step-parents”: Social Issues Committee Report at 83.

191. FLA s 66B(1); Child Support (Assessment) Act 1989 (Cth) s 4.

192. FLA s 66C; Child Support (Assessment) Act 1989 (Cth) s 3(1).

193. Actual or presumed.

194. W Blackstone, Commentaries on the Laws of England (Vol 1, Kerr ed, Oxford 1862) at 466.

195. Re B and J (1996) 135 FLR 472 at 480.

196. FLA s 66M.

197. A H Young, “This Child Does Have 2 (Or More) Fathers: Step-Parents and Support Obligations” (2000) 45 McGill Law Journal 107 at 119.

198. See discussion on W v G at para 3.64-3.67.

199. M Mahoney, “Support and Custody Aspects of the Step-parent – Child Relationship” 70 Cornell Law Review 38 at 48.

200. M Mahoney, “Support and Custody Aspects of the Step-parent – Child Relationship” 70 Cornell Law Review 38 at 43.

201. For a discussion of this in the American context, see S Gary, “Adapting Intestacy Laws to Changing Families” (2000) 18 Law and Inequality 1 at 1.

202. Law Commission of Great Britain, Distribution on Intestacy (Working Paper 108, 1988) at 31-32; Queensland Law Reform Commission, Intestacy Rules (Report 42, 1993) at 1.

203. Law Commission of Great Britain at 32.

204. Law Commission of Great Britain at 33-35.