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My partner and I want to start a family. What parenting rights do same-sex couples have in WA?

Same-sex de facto coouples and break-ups

It’s a dream shared by most couples in Western Australia – to have children together and raise a family of their own. But what do you and your partner need to consider if you are a same-sex couple? And what happens if you separate? Tindall Gask Bentley Senior Associate Renee O’Callaghan explains.


There are various ways you can start a family, but there are specific legal issues around adoption, surrogacy and assisted reproductive technology. In particular, you need to consider who the law considers the child’s parents to be, and who would be liable to pay child support if the relationship ended.

 

Assisted Reproductive Technology (ART)

The Artificial Conception Act 1985 (WA) states that the birth mother and lesbian co-mother of a child born from ART are presumed to be the child’s legal parents. The mothers must be in a genuine relationship at the time of the child’s birth.

A child conceived through ART to a gay couple will have a legal birth mother and gay co-fathers. Unless the birth mother allows the gay couple to adopt the child, she will be the only legal parent.

Intercourse

When a child is conceived through intercourse, the birth mother and birth father will be the legal parents. For a lesbian couple, a child will have a birth mother, a birth father, and a lesbian co-mother. For a gay couple, a child will have a birth mother, a birth father, and a gay co-father.

What legal rights does a co-mother/father have?

Co-parents are not legally the parents of a child and as such, have less legal rights over the child. During Family Law proceedings, the Court will consider the benefit to the child of having a meaningful relationship with both parents. This is a primary consideration. The relationship between a child and their co-parent, however, is not a primary consideration but an additional one. This puts the co-parents at a disadvantage when seeking primary care of the child.

Co-parents may be considered as eligible carers. The Child Support Assessment Act 1989 (Cth) states that an eligible carer is a person who is the sole or principal provider of ongoing daily care for the child, who has major care of the child, who shares ongoing daily care of the child substantially equally with another person, or has substantial care of the child.

Only a parent is liable for child support and as such, if a same-sex couple separates and the child ends up with the lesbian co-mother or gay co-father with a parenting order as an eligible carer, the co-parent can pursue the birth mother or birth father for child support. However, if the child ends up with a birth parent, the parent cannot pursue the co-parent for child support.

Surrogacy

The Surrogacy Act 2008 (WA) states that when a child is born to surrogacy, the legal parents will be the birth mother and the birth mother’s partner at the time of the child’s birth. This will be the case unless a same-sex couple adopts the child.

Can the Family Court of Western Australia make decisions regarding our children?

If your relationship breaks down and you and your partner separate, the Family Court can make decisions regarding children’s matters. This will be done by way of parenting orders and the same rules apply as if you were in a heterosexual de facto relationship.

Parenting orders outline the parenting arrangements for a child. When it comes to making parenting orders, the Family Court must consider the issue of parental responsibility.

Do my partner and I have parental responsibility of our children?

The Family Court Act 1997 is the law relating to de facto couples in Western Australia and states that parental responsibility refers to all duties, powers, responsibilities, and authority that, by law, parents have in relation to children. Parental responsibility can be held jointly by a couple who is married, de facto, separated, divorced, or never lived together.

Therefore, parental responsibility is not limited to the partner who shares a biological connection with the child. However, it is important to know that in order for a person to have parental responsibility over a child, they must be proven to be a parent of that child. The Act states that a child of a same-sex de facto relationship includes:

* A child adopted since the beginning of the de facto relationship by the de facto partners or by either of them with the consent of the other; or

* A child of a de facto partner whose de facto partner is presumed or proved to be the other parent of the child under Australian or Western Australian law.

Further, a child of a de facto relationship includes a child of a de facto relationship that has ended.

Am I in a de facto relationship?

The current definition of “marriage” extends only to the union of a man and a woman. However, same-sex relationships are still recognized at law.

Western Australian law states a de facto relationship is a relationship, other than a legal marriage, between two people who live together in a marriage-like relationship. There are a number of factors that determine whether you and your partner are de facto. These include:

* The length of your relationship;

* Whether you and your partner have resided together;

* The nature and length of your common residence;

* Whether there is, or has been, a sexual relationship between you;

* The degree of your financial dependence or interdependence, and any arrangements for financial support;

* The ownership, use and occupation of property (including property you own individually);

* The degree of mutual commitment by you to a shared life;

* Whether you care for and support children;

* The reputation, and public aspects, of your relationship.

In summary, same-sex parents are afforded the same rights as heterosexual parents under Western Australia law when it comes to child-related matters. The Family Court’s primary concern is the best interests of the child.

Family law can be complex, particularly when it comes to separated couples and parenting orders. If your relationship has recently broken down and you have children together it’s important to get legal advice. If have any further questions or wish to speak to a member of our Family Law team, please contact Tindall Gask Bentley’s Perth office on (08) 9211 5800 or register here and we’ll be in touch soon.

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