眾律國際法律事務所

Since the Family Law Amendment[1] commenced on 21 November 2008, it has introduced not only financial aspects of de facto relationship breakdown into the Family Law Act 1975 (Cth) (“FLA”), but has also changed a number of parenting provisions in the FLA which has significant impacts for surrogate families and same-sex couples.

The purpose of this research paper is to consider whether further reforms are required to the FLA when two or more parties are in dispute about parenting arrangements for a child in the context of same-sex relationships:

1. Artificial Conception Procedure (“Artificial insemination”) or;
2. Surrogacy or;
3. Adoption.

Assuming all circumstances, parties and children are in Queensland, State and Commonwealth Laws apply. In considering all of the above scenarios, it is important to keep in mind that the FLA makes the best interest of a child the paramount consideration in all decisions relating to parenting arrangements.[2] In assessing the best interests of children, family law would look at the role of ‘both of their parents’ and ‘other people significant to their care, welfare and development’.[3] Further, the Discrimination Law Amendment[4] has introduced ‘de facto partner’[5] as a new category of ‘spouse’. A large number of amendments have removed references to ‘husband’ and ‘wife’ with a replacement of ‘spouse’. Significantly, these amendments have also made changes to the Acts Interpretation Act 1954 (Qld)[6] that any reference to a ‘spouse’ in other legislations would include a ‘de facto partner’ as part of the interpretation unless the particular legislation expressly states the contrary.[7] Further potential areas of reform for same-sex relationships were identified from the Anti-Discrimination Commission in Queensland,[8] which will be discussed in detail in this paper.

Artificial insemination

When a child is born using an artificial insemination, provided the consent of the other intended parent is given, the child would be the child of the biological mother and of the other intended parent.[9] Relevant sections which apply to same-sex female couples in circumstances of artificial insemination in Queensland include 17, 18, 19, 19C, 19D and 19E of the Status of Children Act 1978 (Qld).[10]

The FLA has been slow to catch up to the changing face of the family. This creates problems for non birth mothers and often, the men who donated sperm to assist them. The new s60H of the FLA[11] now refers to the woman’s partner as an “other intended parent” rather than a “parent” to incorporate all situations if a woman was married to, or a de facto partner of, another person, then the child is the child of the woman and of the other intended parent, not the party who have provided genetic material for the child.[12] However the failure to expand the definition of a “parent” in s4 of the FLA to include an “other intended parent” could potentially be problematic because ss60B (1)(a), (1)(d), (2)(a), (2)(c) and (2)(d) (objects and principles of Part VII); ss60 CC (2)(a), (3)(c), (3)(e) and (3)(i) (best interest of the child); s61C (parental responsibility); s61DA (presumption of equal shared parental responsibility) of the FLA could all exclusively incorporate “other intended parent” to these provisions. This has indicated an inconsistency between s60H and other provisions of the FLA because a non-birth mother may be considered as an “other intended partner” under s60H of the FLA but may not be considered as a “parent” for the purposes of other provisions of the Act.[13] Section 60H of the FLA would need to be read in conjunction with s. 90RB FLA which provides that a child is “child of a de facto relationship’ in accordance with s. 60H and its associated sections to extend such section to “both opposite-sex and same-sex de facto couples.”[14]