Female Same Sex Couple with Child Ordered to be Returned to Birth Parents

by Peter Magee on July 4, 2016

Daniel Rod

A recent decision in the Family Court of Australia, Blaze & Anor & Grady & Anor [2015] FamCA 1064, highlights the immense difficulties that same sex couples face in parenting matters, especially those involving surrogacy.

Rather than repeating the law of surrogacy in Australia, covered very well by my colleague Bree Stains, I direct you to her article for an overview on the subject.

A matter recently arose in the Federal Circuit Court – later the Family Court of Australia, involving the following factual circumstances that I have summarised for the purposes of this article:

  • Lady “A” fell pregnant with a child, whilst she was in a relationship.
  • During pregnancy, A believed that she would not receive any support from the father of the child and decided to place the child for adoption with her friends “B” and “C”.
  • B and C were two females living in a same sex relationship and were unable to conceive children through natural means.
  • A parenting plan was made for B and C to look after the child as the child’s parents.
  • When the child was born, B and C assumed the role as primary caregivers of the child.
  • Several months after the child was born, a DNA test was conducted and it showed that the father was infact another man, person “D”.
  • 4 months later, A had changed her mind and wanted to take the child back and was supported by D, who wished to play a role in the child’s life too.
  • When the child was 1 year of age, A unilaterally relocated with the child.
  • Proceedings then ensued with the first instance Judge in the Federal Circuit Court ordering that the child live with B and C, whilst spending time with A and D.

The matter is now further complicated when Judge Kent of the Family Court of Australia held that it was in the child’s best interest to have a meaningful relationship with A, B, C & D but that the child should primarily live with A and D, in a schedule that would involve a transition from living with B and C.

Further, the Court held that the child’s name be changed to reflect the names of her biological parents “Grady-Harper” and that B and C would have no parental responsibility for the child.

S65C of the Family Law Act 1975 states:

“A parenting order in relation to a child may be applied for by:

  • either or both of the child’s parents; or
  • the child; or
  • a grandparent of the child; or
  • any other person concerned with the care, welfare or development of the child.”

B and C fall under “any other person(s)” and therefore would have standing to bring an application.

Because the adoption was not formalised but rather an informal Parenting Plan, the child was not legally the child of B and C, therefore there is no presumption of parental responsibility.

A Court is also bound to consider whether equal shared parental responsibility is in the child’s best interest. I personally have struggled with this decision in circumstances where clearly the child is facing the following two alternatives:

  • Live with B and C, whilst spending time with A and D; or
  • Live with A and D, whilst spending time with B and C.

The first proposal would have the child spending time in an arrangement involving three separate households with essentially no one primary residence, which at the child’s age is detrimental to her long term development.

The second proposal, which was what the Judge Ordered, now involves the child dividing her time between A and D, however it now involves these two other people, who the law does not consider to be parents, once a month for a weekend.

In my view, this decision is not in the child’s best interests.

Leave a Comment

Previous post:

Next post: