Same-sex Parents and Separation

by Peter Magee on November 29, 2013

Peter Magee

When Brenna Harding won the Logies award for Most Popular New Female Talent in 2013 she thanked her two mums in her acceptance speech.

In reporting on her win in the Sydney Morning Herald on 9 April 2013 Steve Dow reported “In the hotel room upstairs, her biological mum Vicky proudly watched her daughter’s win on television, while Harding’s other mother, Jackie, did the same from the family’s home in Sydney’s inner western Earlwood.”

Why the obsession on which parent is the biological mother? If a heterosexual couple used a sperm donor, would the mother be referred to as biological mother but the father referred to as the “other parent”? If one mother in a same-sex relationship donated the egg and the other mother was the gestational carrier and gave birth to the baby, would there be the same attempt at defining each mother’s role?

It seems that our society still hasn’t quite got its collective head around same-sex parenting. With Rudd out and Abbott in, it is arguable that the discussion about same-sex marriage, and therefore same-sex parenting will have stalled to some degree.

Regardless of society’s acceptance, and the acceptance of our esteemed political leaders, same-sex families are a reality. In a Sydney Morning Herald article entitled “Children of same-sex couples thriving: study” (Vince Chadwick 6.6.2013) data was provided from the 2011 census that indicated there were 6,120 children under 25 in same-sex families. Dr Crouch, a researcher at Melbourne University, indicated that due to under-reporting, this figure it is likely to be well below the actual figure.

In his article, Vince Chadwick reported on the “Australian Study of Child Health in Same-Sex Families”, which collected data from 500 children across Australia. An interim report indicated that, on the criteria of self-esteem, emotional behaviour, and the amount of time spent with parents, there was no statistical difference between children of same-sex couples, and children of other families. The report did find one statistical difference, which was that overall health and family cohesion was higher in same-sex families than in other families.

Although familial cohesion was reported to be stronger in same-sex families, unfortunately, like every other family, same-sex parents sometimes do separate. So have the Family Courts caught up with the reality of the many different types of Australian families?

The Family Law Act does not itself provide a substantive definition of a “parent” except to include an adoptive parent. More relevant to same-sex couples is section 60H of the Family Law Act, which indicates that a child is a child of a particular person in particular circumstances, arising from artificial conception procedures. For example this section indicates that if a child is born to a woman as a result of an artificial conception procedure while the woman a de facto partner of another person (the other intended parent) and both parties consented to the procedure, then the child is a child of both the woman who gave birth and the other ‘intended parent’. Section 60HB of the Family Law Act deals with children born under surrogacy arrangements in a similar way.

Although the Act does not specifically define the ‘parent’ in these provisions (probably due to imperfect legislative drafting), it can reasonably be deduced that the “other intended parent” may be declared a parent, or at the very least, be treated in the same way as a parent under the provisions of the Family Law Act. This was the conclusion of His Honour Justice Watts of the Family Court in the 2012 judgment of Connors & Taylor.

As such, same-sex parents should be aware that they are likely to be treated in the same way as if they were the biological parent of a child, and that their right to spend time with and communicate with a child, or more specifically the child’s right to spend time with and communicate with them, is not prejudiced by a lack of biological connection.

If you would like more advice on this issue, we recommend you speak to an experienced family lawyer.

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