couple on the breakdown of their

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

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

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

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

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

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

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

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

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

the Northern Territory have agreed to refer their constitutional power regarding

property division to the federal

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

constitutional referrals signed by the state and territory governments have

specified that de facto same-sex relationships are to be

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

with property settlements between two ‘spouses’. A

‘spouse’ is defined as a party to a

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

use the state and territory property division regimes, which all include

same-sex couples within their

advantages over the state regimes. The federal property division

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

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

Opportunity Commission of Victoria describes the additional hurdles faced by

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

1989 (Cth) (Child Support (Assessment) Act) provides a formula for assessing

the amount of child support payable by a

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

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

‘parent’ is defined under the Child Support (Assessment) Act as

Law Act) makes presumptions about who are the ‘parents’ of a child

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

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

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

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

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

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

‘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’.^[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’

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

up with a birth mother or birth father (‘parent’), that parent

cannot pursue the lesbian co-mother or gay co-father for child

separation can have flow-on effects for the purposes of child support and other

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

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

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

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’

‘benefit to the child of having a meaningful relationship with both of the

child’s parents’ as a primary

person, including a lesbian co-mother and gay co-father, will be an

‘additional’ consideration for the Family Court, but not a primary

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

concerned that the children of a same-sex couple are not adequately protected

parent told the Inquiry of the uncertainty that can be created when a biological

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

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

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

the exclusionary definition of ‘parent’ in the Child Support

(Assessment) Act and the Family Law Act breaches the right to non-discrimination

discrimination against same-sex parents may also result in a breach of

Australia’s obligations under the Convention on the Rights of the

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

same-sex couples and families are set out in more detail in Chapter 3 on Human

opposite-sex de facto couples are denied access to a range of property

settlement mechanisms which are available to married couples, because of

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

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

(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

better protect the rights of both the children of same-sex couples and

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

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

recommends that the federal government pass legislation accepting the referral

sets out the definitions which would need to be amended according to these

legislation discussed in this

have access to the federal Family Court for property and child-related matters.

accepted there may need to be following consequential

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)

ss 3-4; Commonwealth Powers (De Facto Relationships) Act 2004 (Vic), ss 3-4; De Facto Relationships (Northern Territory Request) Act 2003 (NT), ss

Attorney-General’s Department, to Vanessa Lesnie, Director, Human Rights

Unit, Human Rights and Equal Opportunity Commission, 16 November

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

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

– 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,

Children’, Inquiry Research Paper, September 2006, available at

http://www.humanrights.gov.au/samesex/index.html, p49. See Family Law Act

1975 (Cth), ss

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),

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

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

(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,

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

Submission 292; The Hon. Penny Sharpe MLC, Submission

Activist Lesbians, Submission 171; Good Process, Submission 284; The Hon. Penny

Sharpe MLC, Submission