Focus on children: recognition for you as a parent

If you and your partner have a child together through IVF or surrogacy, then one of the issues that jumps out is: how are both of you recognised as parents? It may be easy for straight couples, but for same-sex couples, there is a legal nightmare.

If the child is from overseas, then the child may be covered under inter-country adoptions or even have both of you recognised on the birth certificate.

And in NSW if you are a lesbian couple, you might both be recognised on the birth certificate.

But what if you’re none of these?

There are immediately two legal options open to you:

1. Family Law Act
2. Adoption

Orders for decisions concerning long term care and where the children live (or adoption orders) is essential to avoid what was alleged to have occurred in Verner and Vine where two women lived under the one roof together, bought a house together and told the IVF clinic that they were a lesbian couple, which resulted in the mother becoming pregnant. Their friendship soured and the mother married, having a child by her husband. Her former friend, who was unrepresented at court, sought to spend time with the child, on the basis that they were in a lesbian relationship, a notion rejected by the judge (a woman) who went on to say that it was not in the interests of the child for the former friend to spend time with the child.

Family Law Act

It is possible to obtain what used to be called a custody order or residence order in the Family Court. I say “possible” as there is only one reported decision and it was by a single judge, so is not binding on other judges.

The case, Re Mark involved a gay couple who had been to a clinic in California where thanks to the wonders of modern technology one of the partners had fathered a child. Both partners wanted to recognise that they were equally responsible for the child, Mark.

The Family Court ordered that they both have equal responsibility for Mark.

Adoption orders

But what if it’s OK for you to get an order about parental responsibility, but you want an order recognising you as a parent? The only way to do that is to get an adoption order.

The only reported case of a same-sex adoption was in Western Australia last year, with a gay couple being chosen to adopt a young child.

However, although no doubt difficult and expensive, it may not be impossible.

I will give the example of my home state, Queensland. In Queensland as a general rule because of the Adoption of Children Regulations 1999, ordinarily to be eligible to adopt a person must be married for 2 years.

However, the Adoption of Children Act 1964 preserves the ability of the Supreme Court of Queensland to make adoption orders- in effect without the restrictions of the legislation.

In theory, a gay or lesbian couple could obtain an adoption order, so as to enable both to be recognised as parents.

As far as I am aware, this has never been done in Australia.

However, it does not make it an impossibility. This is because it has happened in the USA. As long ago as 1993, in the Adoption of Susan and a companion case, Adoption of Tammy, the Massachusetts Supreme Judicial Court ruled that the unmarried partner of a child’s biological parent can adopt the child and become a second legal parent without the biological parent giving up his or her rights, a case run by the local advocacy group,
GLAD.

As GLAD comments:

The common thread connecting these decisions—and subsequent legislation and court decisions throughout the [US]—is the recognition that, quite simply, adoption is good for kids. The legal, financial, and emotional security of having two legal parents clearly and unequivocally is in a child’s best interest.

Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544