Same-Sex: Same Entitlements: Chapter 12
Chapter 12. Family
Law
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- 12.1 What is this chapter about?
- 12.2 Why can’t same-sex couples access the federal Family Court for property settlements?
- 12.3 How are same-sex couples worse off in property settlements?
- 12.4 Do both same-sex parents have access to child support?
- 12.5 How is parental responsibility divided between same-sex parents on separation?
- 12.6 Does family law legislation regarding separation breach human rights?
- 12.7 How should family law legislation be amended to avoid future breaches?
12.1 What
is this chapter about?
This chapter addresses the problems facing a same-sex
couple on the breakdown of their
relationship.
The issue of divorce never arises
for same-sex couples, since they cannot legally marry. However, a same-sex
couple, like an opposite-sex de facto couple, may need the assistance of a court
to resolve property and child-related issues if their relationship breaks down.
Married, opposite-sex de facto and same-sex
couples can all access the federal Family Court to resolve child-related
matters. But some same-sex couples will be at a disadvantage when it comes to
the determination of parental responsibility and child support after a
relationship breaks down.
Only married couples
can access the federal Family Court to determine how to divide the property of a
relationship. Same-sex and opposite-sex de facto couples must currently go to
the relevant state or territory jurisdictions to decide property-related
matters. Accessing two different jurisdictions creates additional costs. In
addition, state and territory jurisdictions cannot consider the same range of
assets when making a property settlement. Thus de facto couples may end up with
less comprehensive property settlements than those available to married couples.
New legislation proposed by the federal
government should allow opposite-sex de facto couples to access the federal
Family Court for property matters. However the government has indicated that
this new legislation will not assist same-sex couples. If this occurs there will
be discrimination against same-sex couples as compared to opposite-sex de facto
couples.
Further, discrimination regarding the
care of children after relationship breakdown arises because the lesbian
co-mother and gay co-father of a child is not considered a ‘parent’
for the purposes of determining parental responsibility or child support
liability.
This chapter outlines in more detail
how family law discriminates against same-sex couples when a relationship breaks
down. The chapter examines the human rights breaches caused by this
discrimination and recommends changes to the law in order to address those
breaches.
Specifically, this chapter addresses
the following questions:
- Why can’t same-sex couples access the federal
Family Court for property settlements?
- How are same-sex couples worse off in property
settlements?
- Do both same-sex parents have access to child
support?
- How is parental responsibility divided between same-sex
parents on separation?
- Does family law legislation regarding separation breach
human rights?
- How should family law legislation be amended to avoid
future breaches?
For a discussion
about the recognition of same-sex relationships, see Chapter 4 on Recognising
Relationships. For a discussion about the recognition of the relationship of
same-sex parents and their children, see Chapter 5 on Recognising
Children.
12.2 Why
can’t same-sex couples access the federal Family Court for property
settlements?
If a married couple separates, they can go to the
federal Family Court of Australia to dissolve their marriage and resolve all
their property and child-related issues. However, for constitutional reasons, de
facto couples are denied access to the federal Family Court for property
matters.
The effect of this constitutional
anomaly is that, other than in Western Australia, a separating de facto couple
with children must initiate proceedings in two different jurisdictions if their
relationship breaks down.[1] They must
go to the relevant state or territory court to resolve property issues, and the
federal Family Court to resolve child-related issues.
12.2.1 Some
states and territories have referred power to the federal government
Over the past few years NSW, Queensland, Victoria and
the Northern Territory have agreed to refer their constitutional power regarding
property division to the federal
government.[2]
In other words those jurisdictions will give
up their power to deal with property division for de facto couples so that all
separating couples can have their property and child-related matters dealt with
in one court. It is envisaged that as a result of these referrals separating de
facto couples will have the same access to the federal Family Court as
separating married couples.
So far, all of the
constitutional referrals signed by the state and territory governments have
specified that de facto same-sex relationships are to be
included.[3]
12.2.2 The
federal government will not accept referrals regarding same-sex
couples
The federal government has indicated that while it
intends to accept the constitutional referral regarding opposite-sex de facto
couples, it does not intend to accept the referral of power regarding same-sex
couples.[4]
12.3 How
are same-sex couples worse off in property settlements?
At the moment, the federal Family Court can only deal
with property settlements between two ‘spouses’. A
‘spouse’ is defined as a party to a
marriage.[5]
If
the federal government accepts constitutional referrals of state power over
property division for opposite-sex couples, separating same-sex de facto couples
will be the only group of people denied access to the federal property division
regime.
Instead, same-sex couples will have to
use the state and territory property division regimes, which all include
same-sex couples within their
jurisdiction.[6]
12.3.1 The
federal property division regime has many benefits
The federal property division regime has the following
advantages over the state regimes. The federal property division
regime:
- covers a larger pool of the couple’s shared
assets, including superannuation
assets[7]
- tends to attribute a higher value to
non-financial homemaking
contributions[8]
- has broader powers to make property orders or
issue injunctions against third parties, including creditors and family
companies which are not in the legal control of one
partner[9]
- includes broad consideration of future needs as
well as past contributions when making property
adjustments[10]
- uses informal dispute resolution systems which
are cheaper and faster than the state
regimes[11]
- contains provision for periodic or lump sum
spousal maintenance payments where appropriate (such as in cases where one party
has a very limited earning capacity or where a party has extensive financial
resources but few assets available for
division).[12]
In short, the federal property
division regime covers a larger pool of the couple’s shared assets, can
divide such assets with a far greater degree of flexibility, and takes into
account a wider range of factors and circumstances of the parties during and
after the relationship in making any adjustments.
12.3.2 Same-sex
couples cannot access these benefits
Since it appears that same-sex couples will continue
to be excluded from accessing the federal Family Court, they will remain at a
disadvantage regarding property
settlement.[13] Same-sex couples
with children will also face the additional cost and inconvenience of having to
access two jurisdictions.
The Equal
Opportunity Commission of Victoria describes the additional hurdles faced by
same-sex couples as follows:
Once the Commonwealth legislates to act upon the referral
of de facto spouse property matters pursuant to the Commonwealth Powers (De
Facto Relationships) Act 2004 under the Family Law Act heterosexual de facto
couples will be able to access the convenience of one jurisdiction to resolve
their property and child matters on the event of relationship breakdown;
significantly this will include access to primary dispute resolution procedures.
This will result in a significant advantage to heterosexual de facto couples and
the exclusion of same-sex de facto couples will cause significant detriment to
them and their children.[14]
12.4 Do
both same-sex parents have access to child support?
Generally, when a couple with children separates, one
member of the couple will have primary responsibility for caring for the child
and the other member of the couple will provide financial assistance to help
carry out that responsibility (child
support).
The Child Support (Assessment) Act
1989 (Cth) (Child Support (Assessment) Act) provides a formula for assessing
the amount of child support payable by a
‘parent’.
Chapter 5 on Recognising
Children notes that when children are born to a lesbian or gay couple their
parents may include a birth mother, lesbian co-mother, birth father or gay
co-father.[15]
The narrow definition of ‘parent’
in the Child Support (Assessment) Act means that a birth mother or birth father
cannot pursue child support from the lesbian co-mother or gay co-father of a
child – even if the co-parent had a parenting order to look after the
child.
12.4.1 Only
a birth or adoptive parent is a ‘parent’ for child support
purposes
A
‘parent’ is defined under the Child Support (Assessment) Act as
follows:
‘parent’ means:
(a) when used in relation to a child who has been
adopted--an adoptive parent of the child; and
(b) when used in relation to a child born because of the
carrying out of an artificial conception procedure--a person who is a parent of
the child under section
60H of the Family Law Act
1975.[16]
Section
60H of the Family Law Act 1975 (Cth) (Family
Law Act) makes presumptions about who are the ‘parents’ of a child
conceived through assisted reproductive technology (an ART child).
As discussed further in Chapter 5 on
Recognising Children, section 60H of the Family Law Act presumes that the woman
giving birth to the child (the birth mother) is always a ‘parent’ of
an ART child, irrespective of whether it is her egg involved in conception.
Section 60H of the Family Law Act also
presumes that the male partner of the birth mother (the birth father)
will be the parent of the ART child if he consents to the process, irrespective
of whether it is his sperm involved in
conception.
However, the Family Law Act does
not presume that the female partner of the birth mother (lesbian
co-mother) is a parent of the ART child if she consents to the
process.
Thus, the lesbian co-mother of an ART
child will not be a ‘parent’ for the purposes of child support, even
though the birth father of an ART child born to an opposite-sex couple will be a
‘parent’.
Further, the male partner
of a birth father (a gay co-father), and any other person who takes on a
parenting role (social parent), will also be excluded from the definition of
‘parent’. This is the case even if the social parent had a parenting
order in respect of the child before the couple separated. Chapter 5 on
Recognising Children explains why this may be important for many same-sex
couples caring for children.
12.4.2 A
lesbian co-mother and gay co-father may be an ‘eligible carer’
A person will be an ‘eligible carer’ if he
or she is:
(a) a person who is the sole or principal provider of
ongoing daily care for the child
(b) a person who has major
care of the child
(c) a person who shares ongoing daily care of the child
substantially equally with another person
or
(d) a person who has substantial
care of the child.[17]
Therefore, a person in a same-sex couple need
not be a ‘parent’ to qualify as an ‘eligible carer’.
This gives scope for any of the birth mother, birth father, lesbian co-mother,
gay co-father(s) or social parent(s) with a parenting order to be an
‘eligible carer’.
However, a
‘parent’ or ‘legal guardian’ (a person with a parenting
order) has some control over who else may qualify as an ‘eligible
carer’.[18] People other than
a ‘parent’ or ‘legal guardian’ can only be an
‘eligible carer’ if:
- the child is in the person’s care with the
consent of the parent or legal
guardian[19]
or
- the child is in the care of the person without
the consent of the parent or legal guardian, and the Family Court Registrar
believes that it would be unreasonable for the child to be in the care of the
parent or legal
guardian.[20]
12.4.3 Only
a ‘parent’ is liable for child support
To pursue child support a person must be an
‘eligible carer’.[21] But the only person liable to pay child support is a ‘parent’. Under
the Child Support (Assessment) Act, there can only be one ‘parent’
in a same-sex couple.
Therefore, if a same-sex
couple separates and the child ends up with the lesbian co-mother or gay
co-father with a parenting order (‘eligible carer’), that eligible
carer can pursue child support from the birth mother or birth father
(‘parent’).
But if the child ends
up with a birth mother or birth father (‘parent’), that parent
cannot pursue the lesbian co-mother or gay co-father for child
support.[22]
A parent of a lesbian mother told the Inquiry
that:
If separation occurs, my daughter could be left to totally
supporting herself and her daughter...Ironically even fathers who don’t
pay maintenance are still recognised as
parents.[23]
A
mother told the Inquiry:
I have two daughters one is four months old and one is two
years old. The four month is my biological daughter and the two year old is the
biological daughter of my partner. ACT law allows us both to be considered
parents. But this does not help us with issues covered by Commonwealth law, for
example child support on
separation.[24]
12.5 How
is parental responsibility divided between same-sex parents on
separation?
The division of parental responsibility after
separation can have flow-on effects for the purposes of child support and other
financial benefits throughout a child’s life.
Some submissions to the Inquiry expressed
concern about how parental responsibility is divided between same-sex parents on
separation.[25] Changes to the
Family Law Act on 1 July 2006 enhanced the rights of the people recognised as a
‘parent’ under that
legislation.[26] This may
disadvantage the lesbian co-mother and gay co-father who may have been caring
for a child since birth.
12.5.1 Only
a birth or adoptive parent is a ‘parent’ for family law
purposes
The Family Law Act defines a parent to include an adoptive parent.[27] The
definition assumes that a birth mother and birth father will be a parent. This
will include the male partner (birth father) of a woman having an ART child, but
exclude the female partner (lesbian
co-mother).[28]
The definition of parent will also exclude the
gay co-father and any other same-sex parent who has a parenting order in his or
her favour. A person with a parenting order will be one of the ‘other
people significant to [the child’s] care, welfare and development’,
but not a
‘parent’.[29]
12.5.2 Spending
time with a ‘parent’ is a primary consideration on
separation
When deciding custody arrangements on separation, the
Family Court must focus on a child’s best interests. Under the new
amendments, the child’s best interests are divided into
‘primary’ and ‘additional’
considerations.[30]
The Family Court must consider the
‘benefit to the child of having a meaningful relationship with both of the
child’s parents’ as a primary
factor.[31]
The relationship between a child and any other
person, including a lesbian co-mother and gay co-father, will be an
‘additional’ consideration for the Family Court, but not a primary
consideration.[32]
Therefore,
the lesbian co-mother and gay co-father will be at a disadvantage when trying to
gain custody of a child after separation – even if he or she has a
parenting order in favour of the child, and has otherwise cared for the child
since birth.
12.5.3 The
narrow definition of ‘parent’ creates uncertainty for a child on
separation
The Inquiry heard from a number of people who are
concerned that the children of a same-sex couple are not adequately protected
following separation.
The Action Reform Change
Queensland (ARCQ) and Queensland AIDS Council comment:
[We] are aware of some same sex couples for whom ongoing
contact with children is difficult for the non-biological partner following a
break down of the relationship. This is exacerbated by the lack of protection at
family law and in federal legislation. While the [HREOC] research paper
acknowledges that some people may be recognised if they have a parenting order
through the Family Court, it is understood that this is an expensive way to gain
parenthood status and in practical terms may not be widely
used.[33]
One
parent told the Inquiry of the uncertainty that can be created when a biological
parent dies:
In a same-sex relationship where there’s children
concerned, if the biological mother does pass away, the child does not
automatically get to stay with the non-biological parent...If one member of the
biological mother’s family comes forth to take that child out of that
house, that child is gone. You would have to fight it in the Family Court
– it is not a right of ours for the child to stay where it has grown
up. [34]
12.6 Does
family law legislation regarding separation breach human
rights?
This chapter sets out the difficulties facing same-sex
families on separation.
The first problem is
that same-sex (and opposite-sex) de facto couples cannot access the federal
Family Court property division regime, which has significant advantages over
state property regimes. New legislation proposed by the federal government would
allow opposite-sex de facto couples to access the federal regime but not
same-sex couples.
If this new legislation
comes into force in its intended form, it will breach the right of same-sex
couples to non-discrimination under article 26 of the International Covenant
on Civil and Political Rights (ICCPR).
The
second problem is that a narrow definition of ‘parent’ in the Family
Law Act and the Child Support (Assessment) Act puts some same-sex couples at a
disadvantage when it comes to the determination of parental responsibility and
liability for child support. In particular, a birth mother or birth father is
unable to pursue child support from a lesbian co-mother or gay co-father.
Thus, the main finding of this chapter is that
the exclusionary definition of ‘parent’ in the Child Support
(Assessment) Act and the Family Law Act breaches the right to non-discrimination
under article 26 of the ICCPR.
This
discrimination against same-sex parents may also result in a breach of
Australia’s obligations under the Convention on the Rights of the
Child (CRC). This is because:
- the best interests of a child being raised in a
same-sex family do not appear to be a primary consideration – if they
were, a same-sex parent could pursue child support from his or her former
partner and the child’s relationship with both his or her same-sex parents
would be a ‘primary’ consideration in determining custody
arrangements (CRC, articles 2(1), 3(1))
- the narrow definition of ‘parent’ in the
Child Support (Assessment) Act and the Family Law Act does not recognise and
support the common responsibilities of both same-sex parents to
fulfil child-rearing responsibilities (CRC, article 18(1), article
2(1))
- a same-sex parent who is unable to pursue child support
from his or her former partner may be at a financial disadvantage when compared
to an opposite-sex parent in the same position. This amounts to discrimination against the child on the basis of the status of his or her
parents (CRC, article 2(2))
- the narrow definition of ‘parent’ in the
Family Law Act creates uncertainty for the child of a same-sex couple when their
parents separate. This may amount to discrimination against the child on
the basis of the status of his or her parents (CRC, article
2(2)).
There may also be a breach of
the right to protection of the family without discrimination under the ICCPR
(articles 23(1), 2(1)) and the International Covenant on Economic, Social and
Cultural Rights (articles 10, 2(2)).
Australia’s human rights obligations to
same-sex couples and families are set out in more detail in Chapter 3 on Human
Rights Protections.
12.7 How
should family law legislation be amended to avoid future
breaches?
Same-sex families face a range of hurdles on
relationship breakdown.
Same-sex and
opposite-sex de facto couples are denied access to a range of property
settlement mechanisms which are available to married couples, because of
constitutional limitations.
The birth parents
of a child cannot pursue child support against the lesbian co-mother or gay
co-father. And the lesbian co-mother and gay co-father do not have equal
consideration as the birth parents in determining custody
arrangements.
The following sections summarise
the cause of the problems and how to fix them.
12.7.1 Narrow
definitions of ‘parent’ are the main problem in child support and
family law on separation
The narrow definition of ‘parent’ in the
Child Support (Assessment) Act and the failure to recognise the lesbian
co-mother of an ART child as a ‘parent’ under the Family Law Act
creates discrimination against same-sex parents and children. These definitions
should change.
The problem of denying same-sex
(and opposite-sex de facto) couples access to the federal property division
regime is caused by constitutional issues. But it can be rectified if the
federal government accepts the referral of constitutional power being offered by
state governments.
12.7.2 The
solution is to amend the definitions and recognise both same-sex parents
Chapter 5 on Recognising Children sets out how to
better protect the rights of both the children of same-sex couples and
the parents of those children.
The Inquiry
recommends that the federal government implement parenting presumptions in
favour of a lesbian co-mother of an ART child. This would mean that a lesbian
co-mother would automatically be a ‘parent’ (in the same way as a
father of an ART child is a
‘parent’).
Chapter 5 also suggests
that it should be easier for a lesbian co-mother and gay co-father to adopt a
child. Again, if this occurred then they would automatically qualify as a
‘parent’.
The Inquiry also
recommends that the federal government pass legislation accepting the referral
of state power regarding property division between opposite-sex and same-sex separating couples.
The following list
sets out the definitions which would need to be amended according to these
suggested approaches.
12.7.3 A
list of legislation to be amended
The Inquiry recommends amendments to the following
legislation discussed in this
chapter:
Family Law Act 1975 (Cth)
Parenting presumptions for an ART child (s 60H –
amend to include a parenting presumption in favour of a lesbian
co-mother)
‘parent’ (s 4 – no need to amend if s
60H is amended and a gay co-father or lesbian co-mother may be recognised
through reformed adoption laws)
Child Support (Assessment) Act 1989 (Cth)
‘eligible carer’ (s 7B – no need to
amend if ‘parent’ recognises a gay co-father or lesbian co-mother
through reformed parenting presumptions or adoption laws)
‘parent’ (s 5 – no need to amend if
section 60H of the Family Law Act is amended and a gay co-father or lesbian
co-mother may be recognised through reformed adoption laws)
12.7.4 New
legislation should accept constitutional referrals regarding property division
for separating same-sex couples
Same-sex and opposite-sex de facto couples should both
have access to the federal Family Court for property and child-related matters.
This requires:
- all states to refer their constitutional powers to the
federal government regarding same-sex and opposite-sex de facto
couples
- the federal government to accept those
referrals.
Once those referrals are
accepted there may need to be following consequential
amendments:
Family Law Act 1975 (Cth)
‘spouse’ (s 90MD – amend to include a
person in a ‘de facto relationship’)
‘de facto relationship’ (insert new
definition).[35]
Endnotes
[1] Western Australia administers its own Family Court. Since the introduction
of the Family Court Amendment Act 2002 (WA), the Western Australian
Family Court administers child-related matters and property settlements for
married and de facto (including same-sex)
couples.
[2] Commonwealth Powers (De Facto Relationships) Act 2003 (NSW); Commonwealth Powers (De Facto Relationships) Act 2003 (Qld); Commonwealth Powers (De Facto Relationships) Act 2004 (Vic); De Facto Relationships (Northern Territory Request) Act 2003 (NT).
[3] Commonwealth Powers (De Facto Relationships) Act 2003 (NSW), ss 3-4; Commonwealth Powers (De Facto Relationships) Act 2003 (Qld),
ss 3-4; Commonwealth Powers (De Facto Relationships) Act 2004 (Vic), ss 3-4; De Facto Relationships (Northern Territory Request) Act 2003 (NT), ss
3-4.
[4] Gabrielle Mackey, A/g Assistant Secretary, Human Rights Branch,
Attorney-General’s Department, to Vanessa Lesnie, Director, Human Rights
Unit, Human Rights and Equal Opportunity Commission, 16 November
2006.
[5] Family Law Act 1975 (Cth), s
90MD.
[6] See J Millbank, ‘Recognition of Lesbian and Gay Families in Australian
Law – Part One: Couples’, Federal Law Review, vol 34, no 1,
2006, p39. Note that the Statutes Amendment (Domestic Partners)
Act 2006 (SA) had not commenced as at 10 April 2007. When the Act does
commence, the SA property division regime will apply to same-sex
couples.
[7] State regimes are unable to divide superannuation assets, which often make
up a significant portion of a couples’ asset pool. Since 2002 the Family Law Act 1975 (Cth) grants the power under pt VIIIB to deal
with superannuation funds of the parties to a marriage. Some state
superannuation legislation specifies that state public superannuation benefits
are an asset for the purposes of federal family law property division schemes. A
same-sex partner is thereby explicitly excluded from accessing this benefit on
separation: J Millbank, ‘Recognition of Lesbian and Gay Families in
Australian Law – Part One: Couples’, Federal Law Review, vol
34, no 1, 2006, pp39-40. See also Judges Pensions Act 1971 (SA), pt 2A; Parliamentary Superannuation Act 1974 (SA), pt 4A; Police Superannuation Act 1990 (SA), pt 5B; Southern State
Superannuation Act 1994 (SA), pt 5A; Superannuation Act 1988 (SA), pt 5A; Solicitor-General Act 1983 (Tas), sch 1; Administrators Pensions Act (NT), s 9; Superannuation Act (NT), pt
3, Division 3; Superannuation Guarantee (Safety Net) (NT) s
7.
[8] See J Millbank, ‘Recognition of Lesbian and Gay Families in Australian Law
– Part One: Couples’, Federal Law Review, vol 34, no 1, 2006,
p39. See also L Willmott, B Matthews and G Shoebridge, ‘De facto
Relationships Property Adjustment Law – A National Direction’, Australian Journal of Family Law, vol 17, January 2003; In the
Marriage of Waters and Jurek,(1995) 19 FamLR 190; B
Fehlberg, ‘With all my Worldly Goods I Thee Endow?: The Partnership Theme
in Australian Matrimonial Property Law’, International Journal of Law,
Policy and the Family, vol 19, no 2, 2005, pp176 -193.
[9] J Millbank, ‘Areas of Federal Law that Exclude Same-Sex Couples and their
Children’, Inquiry Research Paper, September 2006, available at
http://www.humanrights.gov.au/samesex/index.html, p49. See Family Law Act
1975 (Cth), ss
90AC-AF.
[10] Family Law Act 1975 (Cth), ss 75(2), 79. Only half of the
state and territory regimes consider any form of future needs, and not all do so
as broadly as the federal regime. Tasmania and the ACT are the broadest:
see Domestic Relationships Act 1994 (ACT), s 15(1)(e); Relationships
Act 2003 (Tas), ss 40(1)(e),
47.
[11] For example, family dispute resolution and family arbitration are available at
the federal Family Court: Family Law Act 1975 (Cth), ss 10F, 10L.
[12] Family Law Act 1975 (Cth), s 75(2). Spousal maintenance provisions vary
between states and territories and in some cases can be more restrictive than
the federal Family Law Act 1975 (Cth). See Property (Relationships)
Act 1984 (NSW), ss 26-27; Evans v Marmont (1997) 42 NSWLR 70
at 78-79; De Facto Relationships Act 1991 (NT), ss 24, 26; Domestic
Relationships Act 1994 (ACT), ss 18-19. In Tasmania see Relationships Act
2003 (Tas), s 47. Queensland, South Australia and Victoria have no
maintenance provisions for de facto couples at all: Property Law Act 1958 (Vic); De Facto Relationships Act 1996 (SA); and Property Law Act 1974 (Qld).
[13] See also Associate Professor Jenni Millbank, Submission 27a; Australian Lawyers
for Human Rights, Submission 286; Dr Samantha Hardy, Dr Sarah Middleton and Dr
Lisa Butler, Submission 125; Gay and Lesbian Rights Lobby (NSW), Submission 333;
Human Rights Law Resource Centre, Submission 160; Kingsford Legal Centre,
Submission 309; Law Institute of Victoria, Submission
331.
[14] Equal Opportunity Commission of Victoria, Submission
327.
[15] For an explanation of these terms see the Glossary of
Terms.
[16] Child Support (Assessment) Act 1989 (Cth), s
5.
[17] Child Support (Assessment) Act 1989 (Cth), s
7B(1).
[18] There is no definition of ‘legal guardian’ in the Child Support
(Assessment) Act 1989 (Cth). ‘Guardianship’ is a term that has
not been used for some years in the Family Law Act 1975 (Cth), where it
was replaced by the concept of ‘parental responsibility’. By
implication, it seems likely that a person with parenting orders granting them
sole or shared parental responsibility under the Family Law Act 1975 (Cth) would be taken as a ‘legal guardian’ for the purposes of the Child Support (Assessment) Act 1989 (Cth). See Family Law Act 1975 (Cth), ss 61B, 61D,
64B(1).
[19] Child Support (Assessment) Act 1989 (Cth), s
7B(2).
[20] Child Support (Assessment) Act 1989 (Cth), s 7B(3).
[21] Child Support (Assessment) Act 1989 (Cth), s
25.
[22] The only avenues available would be to pursue a promissory estoppel claim or
a limited maintenance claim under state property law – both avenues are
expensive and uncertain. See W v G (1996) 20 Fam LR 49. Under the Property (Relationships) Act 1984 (NSW), s 27, maintenance
is only available on very limited
grounds.
[23] Speaker, Launceston Public Forum, 25 September
2006.
[24] Liz, Canberra Hearing, 20 November 2006. See also Inner City Legal Centre,
Submission 292; The Hon. Penny Sharpe MLC, Submission
341.
[25] See also Australian Lawyers for Human Rights, Submission 286; Coalition of
Activist Lesbians, Submission 171; Good Process, Submission 284; The Hon. Penny
Sharpe MLC, Submission
341.
[26] Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).
[27] Family Law Act 1975 (Cth), s 4. See further Chapter 5 on Recognising
Children.
[28] Family Law Act 1975 (Ct