Fact Sheet

Parenting Issues for Same Sex Couples

Introductory

This paper examines the legislation and cases that relate to parental responsibility in same sex parenting cases.

In the course of this paper, some of the legal issues and difficulties that have arisen in the cases are discussed. Practical suggestions for dealing with those issues will be made. 

Conception for same sex parents will involve an artificial conception procedure. The expression ‘ artificial conception procedure’ is a phrase used in the Family Law Act  (see section 60H) and covers IVF, infertility treatment and artificial insemination. 

There is different legislation in each state and territory to cover artificial conception procedures and the generic phrase commonly used to lump these pieces of legislation together is reproductive technology legislation.  Clinics where artificial conception procedures are performed will be referred to as reproductive technology units. The Hunter IVF Clinic, Sydney IVF and North Shore ART are examples of such clinics.

Where same sex parties are concerned, the conception of a child will occur in four general fact situations:

1. A lesbian couple where one party conceives via an artificial conception procedure with an anonymous sperm donor

2. A lesbian couple where one party conceives via an artificial conception procedure with a known sperm donor

3. A gay male couple entering into a surrogacy arrangement where one or both donate sperm

4. A gay male couple entering into a surrogacy agreement, where the sperm is from an anonymous donor

Spectrum of relationships

It is clear that more and more people are chosing to have children outside traditional two parent heterosexual relationships. This is difficult for lawyers and politicians as the new family forms are appearing without necessarily the social or legal categories to recognise them.

In October 2002, the Gay and Lesbian Rights Lobby NSW (‘GLRL’) released a discussion paper in relation to legal and other issues of concern to gay and lesbian parents. The contents of the discussion paper drew on research on same sex couple family forms from Australia, the UK and the US. Following on from that discussion paper, the GLRL held community consultations in NSW between December 2002 and February 2003 and ultimately produced a report. The findings of the report showed a number of trends:

• Up to 10% of gay men and 20% of gay women are parents

• Up to half of these parents have had children in the context of a previous heterosexual relationship but this proportion appears to be declining

• Most lesbian parents are now conceiving through artificial conception procedures

• Between 50-70% of lesbian parents using an artificial conception procedure use a known sperm donor, and most are gay men

• About 85% of lesbian parents are having children in a same sex relationship

• Lesbian parents are divided on whether there should be some limited legal recognition of known donors, or none at all

• Of the gay men who are known donors, between ½ and 2/3 of them have some contact with the child

• Donor-dads want some legal recognition that varies in form and process according to individual circumstances.

Further information can be gleaned from a useful publication produced by the Gay and Lesbian Rights Lobby: ‘Meet the Parents’ [2002).
 
Gay parenting situtations are therefore becoming increasingly common.

How does the Family Law Act deal with gay parenting situations?

“Family” is not a concept which is defined in the Family Law Act.  Despite some conservative views, it takes different forms in different social, ethnic and religious backgrounds. In the case of families led by same sex parents, its form has been recognised by the Family Court in various cases and it is therefore worth noting the remarks of the former Chief Justice Alistair Nicholson who has said:

“One of the fundamental misconceptions which plagues me is the failure to understand that heterosexual family life in no way gains stature, security and respect by the denigration or refusal to acknowledge same-sex families. The sum social good is in fact reduced, because when a community refuses to recognise and protect genuine commitment made by its members, the state acts against everybody’s interests..”

Although the Family Law Act  contains some provisions dealing with artificial conception procedures, the laws regulating reproductive technology and surrogacy are dealt with by the States and Territories and vary in each case.

Jurisdictional issues

Before moving on to deal with the various common factual situations, it is probably wise to spend a bit of time looking at the structure of the family law system.

There are essentially 3 jurisdictions that can deal with family law matters.  They are the Local Court, the Family Court of Australia, and the Federal Magistrates Court.  Family Law matters are generally instituted in the Local Court in areas where the Family Court does not sit, such as regional towns. In Newcastle and the Hunter region, we have local courts in Newcastle, Belmont, Cessnock, Raymond Terrace, Kurri: there is no longer one operating in Wallsend. We have a Family Court and in the same building the Federal Magistrates Court. People living north of Newcastle (Taree, Port Macquarie and all points west) use the Family Court Registry in Newcastle because north of Newcastle, the closest Family Court is Brisbane. Those who live in Coffs Harbour and all points north would use the Family Court Registry in Brisbane.   

When matters are commenced in the Local Court in areas with access to the Family or Federal Magistrates Courts, they generally only proceed if they are fairly simple.  If there are complex issues, for example involving allegations of risk to children, Magistrates uniformly refuse to deal with the matter and immediately transfer it to the Family Court.  This obviously causes delays in matters where immediate action or orders are vital.

The major difference between the Family Court of Australia and the Federal Magistrates Court is the factor of time.  Matters generally proceed through the Federal Magistrates Court at a quicker rate than through the Family Court.  The Federal Magistrates Court was also never intended to hear lengthy or complex family law matters.  In terms of cases getting on and proceeding through the courts, it should be noted that with the large volume of cases before both courts (the Family Court and the Federal Magistrates Court), it is common for matters to take over a year or, certainly in the Family Court in Newcastle, two years to reach final orders.  The situation in Newcastle with the backlog of cases waiting to be heard in the Newcastle Registry at the moment is so bad that parties are sometimes advised by their lawyers to transfer the matter, by consent, from the Newcastle Registry to the Sydney or Parramatta Registries, as those Registries can deal with matters up to 12 months earlier than the Newcastle Registry can find time to list them for a final hearing.

Procedures

Matters by consent 

Procedures involving family law issues can be simple or complex. With the agreement of both partners or parties and where there is no dispute as to what each or every party wants, the courts can approve consent orders. Ideally, these need to be drawn up by lawyers who have knowledge of the relevant family law. Although they do not have to be. Consent orders can be filed in any of the courts with family law jurisdiction and the advantage of having the orders filed in a court (rather than relying upon a loose document that is kept in the bottom drawer of a desk) is that such orders are enforceable if things become unstuck. 

Contested matters

If there is not agreement between the parents or parties, then legal proceedings will need to be commenced in one of the courts that exercise family law jurisdiction ( or have the power to hear family law matters).

Pre-Action Procedures

A recent family law development has been the introduction of what are known as pre-action procedures.  These are compulsory procedures and prospective parties must follow them before filing an application in the Court. They only apply to disputes about financial and parenting matters ie not divorces. Also in cases where there are allegations of child abuse, family violence or in cases where it can be shown that the dispute is genuinely intractable, the Court may accept that it is not possible or appropriate for the pre-action procedures to be followed.

The motivation for the changes was the desire to focus parties upon attempting to mediate or negotiate their issues prior to commencing legal proceedings.  The type of requirements now imposed upon parties and legal representatives include participation in dispute resolution services, identifying the issues in dispute, and making full and frank disclosure of all necessary matters.  If the pre-action procedures are not followed, parties risk serious consequences, which include costs orders against a party, and taking non-compliance into account when making procedural orders.

Family Relationship Centres

There are exceptions to the requirement to follow pre-action procedures: including matters involving a real degree of urgency, where there are allegations of child abuse or family violence; and where the same issue or subject has been before the court in the past twelve months. In cases involving very difficult family issues such as violence or abuse, the newly created Family Relationship Centres are designed to assist.  This was another new Federal Government initiative: again motivated by a desire to resolve disputes outside of court. The centres will allow couples undertaking a separation to resolve child custody disputes in a less adversarial environment.

The Liberal/National Party Federal Government established a network of 65 community-based Family Relationship Centres across the country over the course of the last few years.

Newcastle, although missing out on a FRC in the first round of announced centres, was finally successful in getting an FRC. It was considered to be in desperate need of a Family Relationship Centre due to the large percentage of economically and socially disadvantaged people, high unemployment, high rates of divorce and an under-resourced Family Court. Newcastle is one of the busiest Family Law registries in the country.

Due to these demographics there is a high incidence of family law matters involving custody and access disputes and a high incidence of allegations of domestic violence and sexual abuse. Most children’s hearings involve one or two dysfunctional parents, children with adjustment problems and allegations of child abuse. There are few cases involving disputes concerning property.

Listing procedures

Once a party files an application for interim or final orders in either the Family or Federal Magistrates Court, they are generally listed for a directions hearing.  At that point in time, the parties indicate to the Court whether agreement can be reached.  Depending on the availability of time and resources, parties may also be sent for a mediation session prior to the directions hearing, so that a Family Court counsellor can attempt to mediate the outstanding issues.  In the Family Court jurisdiction, both parties and legal representatives can attend a case conference with a psychologist.  If parties are able to reach agreement, either on an interim or final basis, then orders can be made by consent.  However, if mediation and negotiation are unsuccessful, and there are still outstanding issues, the matters are then listed for either an interim or a final hearing.

Interim and final hearings

Interim hearings are generally run on the basis of written evidence via affidavit material.  Parties are only required to give oral evidence and be available for cross-examination in very limited circumstances.

At a final hearing, all parties who provide affidavit material in support of the applicant or respondent cases must be available for cross-examination, if required.

Subpoenaed materials, together with the evidence of experts, and a Family Report prepared by a psychologist, may also be utilised in interim or final hearings, depending on the issues in the matter.  The court also has the option of appointing a Child Representative, a solicitor who essentially acts for the children, and advises the court on what they believe is the most appropriate result for the children.  They can take the wishes of children into account, but will not promote them to the court if they believe they are not in the best interests of the children. 

The litigation process

Accessing courts in family law matters is generally a long process and often expensive. Although we have seen very major cuts to legal aid funding over the last 10 or so years, there is still legal aid available in family law proceedings but the availability of legal aid in a particular matter will be dependent upon the person’s means. If the person applying for legal aid is in receipt of any income at all, that person will almost certainly be considered ineligible for legal aid. In terms of family law matters run on a private basis, it is not uncommon for lengthy matters to cost in excess of $20,000: for example, in cases where there is a big contest in relation to residence issues involving children or property issues.
Having to pay such amounts in legal costs may not necessarily be a problem in matters where the dispute relates to property (provided that the parties have a reasonable amount of equity in the property) but the liability to pay high legal costs will certainly be much more of a problem where the dispute relates to parenting issues. Aside from the financial burden placed upon the parties, the very nature of litigation itself causes stress and antagonism, and is often a hindrance in settling family law disputes.

It is generally best if parties can negotiate and reach an agreement between themselves.  Not only do they save themselves large amounts of money and months of tension and high emotion, they also have the opportunity to obtain orders that they have had a hand in shaping.  When parties simply cannot settle, they let their fate and the fate of their children rest in the hands of a stranger with only a relatively limited knowledge of their history and circumstances. 

In summary then in making a decision as to whether to try to agree or to litigate, it is certainly worth bearing in mind the stress and the costs involved in litigating. Ultimately, a judge or magistrate should base their decision upon the evidence provided to them but they cannot know everything and they are human. They come to the dispute with their own particular opinions and prejudices.  If parties are able to reach an agreement, then they are assured of reaching an outcome they know they can live with, instead of handing the matter to a third party, who may well make a decision that neither party is happy with. It is often said by lawyers that in family law no one wins.

If agreement is reached at any time during court proceedings, then orders can be prepared and filed, without the necessity of a hearing.  If the parties are able to agree prior to any proceedings being instituted, then they can prepare a form called an Application for Consent Orders, which encapsulates all of the parties relevant details, together with the orders proposed.  A Registrar of the Family Court examines the proposed orders, and if they believe they are appropriate, they make the orders without the parties ever having to step foot inside the dreaded Family Court building.

Types of Orders

There are 3 types of orders that can be made in Family Law matters: 

Residence Orders relate to whom the children live with (formerly referred to as custody orders).

Contact Orders relate to how often children see other parents or third parties, such as grandparents (formerly referred to as access orders).

Specific Issue Orders relate to matters which will impact upon how the children will be raised, such as education, religion and health.

Issues to be Considered

When making any of the above 3 types of orders, a court is required to take into account a number of different considerations.  The “best interests of the child” is the mantra of family law and the phrase “the best interests of the child is the paramount consideration ” appear as the guiding and central principle in many of the cases. Looking at the best interests of the children is the primary focus of the courts in applying the Family Law Act and equivalent legislation and in determining orders relating to children.

Under section 68F of the Family Law Act 1975, there are a number of factors a court must consider, when determining what is in the best interests of the child.  These include any wishes expressed by the child; their age and maturity; the nature of their relationship with parents, siblings and third parties; the likely effect of any changes in their circumstances; and the capacity of each parent to provide for the child’s needs, including the child’s emotional and intellectual needs.

In the past, homosexuality was certainly regarded as a prohibitive factor in determining what is in the best interests of the child.  But we have moved on and judicial and societal attidudes have changed a great deal. In the past, family law practitioners would tell their gay clients to expect judicial intolerance of their parental aspirations and a parent’s homosexuality was without a doubt considered prejudicial to that parent’s chances of success in being awarded parenting responsibility in relation to children of a relationship. This is no longer the case.  Any judicial officer who showed some form of bias either for or against a gay parent and that parent’s parental skill or ability would have major issues to deal with in the Judicial Commission. 

Whilst sexuality may be raised in Court proceedings, it, in itself, will not impact upon the Court’s decision as to whether a gay man or a lesbian is a suitable person to obtain a residence or contact order.

The Court will examine other relevant issues, such as:

• whether the person has a long-term partner
• their physical and mental health
• parenting skills

Thus, the court will focus upon a broad range of lifestyle and environment based issues, ie. matters that pertain to any party before the court, whether they be homosexual or heterosexual.

These changes notwithstanding, however, gay parents still report considerable apprehension about how the Courts will deal with them presenting themselves as lesbian and gay families. Those who lobby in this area write that there is still a clear need to provide greater certainty for lesbian and gay parents having children together, as well as more accessible and user-friendly dispute resolution mechanisms if and when conflict arises.

Terminology

We need to spend a bit of time discussing the roles and relationships and distinguishing between those relationships which are legally recognised and those which are not.

Mothers                Biological mothers                                     

Co-mothers           Non-biological mothers
                             who have jointly planned,                                   
conceived and raised a child
with a female partner

Fathers                 Biological fathers                                

Co-fathers             Non-biological fathers who                        
                             are co-parenting a child from birth              
with a male partner who is the                    
biological or adoptive father
                            
Co-parents            Co-mothers and co-fathers
                             who are parenting equally with a
                             partner who is the biological
                             or legal (eg adoptive) parent of
                             the child

Step-mothers        Partners of a parent who has had a
Step-fathers          child in a previous relationship

Known donors      Biological fathers through donor
                             insemination who know, but have
                             little involvement with, a child they
have helped to create

Donor-dads          Biological fathers who have involvement, and
regular contact with their children

Many parents would not use such terms to describe their own relationships. Many lesbian couples refer to themselves as “mothers” and not “co-mothers”. Many men who are biological fathers feel hurt or offended at terms such as “donor” or “donor-dad”.

Relevant legislation 

In NSW, the Status of Children Act 1996 was enacted to ensure that children born outside marriage are treated the same as those children born to married couples. It was specifically designed to cover the situation of property disputes and has no application to residence and contact issues. 

The objects of the Act are set out in the Second Reading Speech of the Minister and the Act itself:

• continuing to enshirine the right of ex-nuptial children to be treated the same as children born within a marriage for legal pruposes including in relation to dispositions of property; and

• providing an improved system for determining a child’s parentage including ensuring consistency between Commonwealth and State parentage presumptions

How does the Status of Children Act 1996 deal with the situation of children conceived using fertilisation procedures and born to lesbian parents?

The Anti-Discrimination Board of NSW reviewed the Act in 2002 and considered that the Status of Children Act does not treat all exnuptial children the same. It considered that children born using fertilisation procedures and born to lesbian parents were not treated the same as those born to heterosexual (unmarried) couples.

In regard to the presumption of parentage, section 14 of the Act provides that the man who has provided his sperm for a fertilisation procedure and is not the husband or de facto partner of the woman concerned is presumed not to be the father of the child.  Rather, where a woman becomes pregnant by fertislation procedures and is married to or in a de facto relationship with a man, that man is presumed to be the father unless he has not consented to the insemination, although he is not the biological father of the child.

However, in the case of a child born to a lesbian couple, the Status of Children Act does not provide the same status for that child as it does for the child of a heterosexual couple born as a result of a fertilisation procedure. Where 2 women in a relatioship decide to conceive a child through artificial insemination, and the birth mother so conceives with the consent of her female partner, the female partner is not recognised as a parent of the child, even though the man who has provided his sperm for fertilisation procedure is presumed not to be the father of the child (as per section 14 of the Act). Therefore, children born to lesbian couples are not treated the same as children born within a marriage. 

Whilst it seems to be widely recognised that chidlren of non-traditional relationships may face disadvantages , nothing has yet been done legislatively to cure the problems.  What needs to happen is the Status of Children Act needs to be amended to provide that it applies to all  ex-nuptial children irrespective of the sexuality of their parents.  The Act would need to provide that where a woman becomes pregnant by fertilisation procedures and is in a de facto  relationship with another woman, that woman is presumed to be the parent unless she has not consented to the insemination, although she is not the biological mother of the child. An amendment in these terms would be consistent with the provisions of the Anti-Discrimination Act which prohibits discrimination on the ground of a person’s marital status or homosexuality, or the marital status or homosexuality of a person’s associate or relative. 

Relevant legislation in relation to parenting issues

Turning now to parenting issues.  

In the context of legal recognition of the various parenting relationships, a consideration of the role of the birth certificate is a good place to start. 

There is widespread misapprehension about the legal role of birth certificates. Many believe that if a man is named on the birth certificate as a father then he is conclusively a legal father to the child. This is not so.

Certainly birth certificates give rise to a legal presumption of paternity, but this can be rebutted by other evidence. If the man listed on the birth certificate did not have sex with the mother but instead contributed his semen through donor insemination a simple stat dec from both parties saying that this is so is enough to rebut the presumption that would ordinarily flow from the birth certificate. Many women chose not to list the biological father on the birth certificate because it is much simpler not to.  It is very invasive and can be unpleasant to have to produce the necessary evidence to the various agencies who may have an interest in establishing the legal status of a child’s parents eg Centrelink, the passport office. However, the arguments in favour of or against listing the biological parents are complex. There is a general trend towards openness in providing children with information about their biological heritage in situations such as adoption and donor insemination.

What of the situation of the birth mother?

She is in a good in a good position in regard to presumptions of parentage. 

The Family Law Act  creates a presumption of parentage in her favour: see  section 60H(2).

So too, the entry of the mother’s name on the birth certificate creates a  presumption of parentage: see section 69R of the Act.   

What of the situation of the co-mother?

The Act does not create any presumption in favour of the co-mother in the case of a lesbian couple. Only the birth mother.  However, in W.A., the laws allow the co-mother to be noted as a parent on the birth certificate and therefore a presumption of parentage would then apply to her under section 69R.  This does not help women in NSW however.  
 
There are various changes to the relevant Births, Deaths and Marriages laws that have been advocated:

• known donors could be listed on birth certificates without any legal presumption arising: this would mean that biological paternity would be acknowledged but would not have any legal effect.

• important people could be listed .. there is currently a space for the “informer”.. usually the doctor or other person present at the birth… this space could be made generic and include others

• parents could be recorded as non-gender specific: mothers and co-mothers could be then be regarded as parents on birth certificates

The recording of names and relationships and the presumptions that this creates is not the end of the story. The recording of a name and the presumption of parentage created is just that: a presumption and that presumption is capable of being rebutted. 

Thus a court can take into account other matters to conclude that a person is the parent of a child. This leads into the role played by parenting orders. 

Parenting orders

Firstly a few words about procedure.

Any individual can make an application to a court with jurisdiction to hear family law matters for a parenting order. The application takes the form of what is known as a Form 3 or a Form 11 Application for Consent Orders.

Parenting orders can be made regardless of the biological or legal relationship between the parties or between the parties and the child. But the point needs to be made that gay and lesbian co-parents do not have automatic rights or responsibilities regarding the children.  They can certainly be included in formal parenting orders: such orders identifying them as a person concerned with the “care, welfare and development” of children and also permitting them to share responsibility for long and short term care of children.  Thus, same sex partners can legally share the responsibility of raising children, through joint parenting orders. By way of example, a mother and co-mother can jointly apply for parenting orders by consent: such orders  covering such issues as residence and contact as well as other specific issues.

If there is no legal father, or if there is and he consents, this is a fairly simple process as noted above. The process has been used on numerous occasions to confirm that the child legally resides with the co-mother as well as confirming her authority to make medical and educational decisions about the child.

Consent orders can also cover involved donor-dads. Such orders could set out what contact the donor-dad is to have with the child, or establish that residence is to be shared between the donor-dad and the mothers.

Again the advantages of proceeding by means of consent orders is that the process is quicker than if the same parties were to proceed down the protracted litigation path, the terms of the agreement can be flexibly applied and tailored to the individual circumstances of the family involved, the orders can cover more than two adults (ie multi-parent families) and can be used by co-parents as well as step-parents.

What happens if a biological parent does not consent to the consent orders?

The co-parent must apply to the court for relevant orders so that their role in relation to the child or children is legally recognised.  If disputes arise between same sex parents and co-parents, then the parties will need to apply to the court  for orders relating to their residence of or contact with the child.  Again, the court will focus upon what is ultimately in the best interests of the child, and all the associated matters to be taken into consideration. 

It is understood that the Family Court is currently working on a standard procedure to deal with cases where same sex couples seek parenting orders in relation to children conceived through an artificial conception procedure.  THere is a draft practice direction before the Family Court which really only applies to lesbian couples. No one seems to know how far this has progressed and how long before a standard procedure will be adopted by the Court.

Financial issues

Apart from the care of children, same sex parents should be aware of potential financial implications of co-parenting.  The case of W v G (1996) (which was actually a Newcastle case) held that a co-parent may be ordered to accept some responsibility for financially supporting a child.  That case arose from a promise made by the co-parent (a woman) to the mother that she would financially support children that were conceived through artificial insemination, a promise from which she resiled after separation. There were two children born during the relationship between the 2 women and the sperm donor was the same for both pregnancies. He was known to both women but he had given sperm on condition that he would not be acknowledged as the father nor would he be held financially responsible for the upbringing of the children.

The court in this case stated that the co-parent was to assist in the financial support of the children, as she had encouraged the mother to believe that she could rely upon and act on that promise of support in becoming pregnant. The co-parent who was seeking to avoid responsibility for the upkeep of the children was a woman of considerable wealth and an order was ultimately made for lump sum maintenance for both children.  The court said (and this was a case heard in December 1995) that it was not contrary to public policy for a court to find that a person who is living in a lesbian relationship with the mother of the child conceived by artificial insemination and who also participates in the act of conception and acts as a parent to the child or children is liable to provide material support for that child or children.   The determining factor in the case of W v G  was the fact that there had been a promise of financial support and in consideration of that promise the mother had had the 2 children. 

In regard to liability for child support, the co-parent is not prima facie liable for child support through the Child Support Agency.  But if the child upon separation continues to reside with the co-parent (not the biological parent), the co-parent can use the Child Support Agency to pursue child support from the biological parent.  In a 1996 decision of the Family Court, a donor sought a declaration from the Court that he was not legally liable to provide child support through the Child Support Agency. The Court found that as the child had been born as a result of an artificial conception procedure, the donor who provided the sperm for the mother of the child was not a “parent: ” see Re B and J. 

In the event of the breakdown of the relationship between same sex parents, if both parents have taken responsibility for the welfare of the child, either party can make a claim for maintenance for children up to the age of 12 (or 16 if the child has a disability).

A biological parent can name a person in their will as the person they would like to look after a child or children after their death. This person is known as the child’s guardian and guardianship of this type becomes particularly important where there are no existing orders fromt eh Family Court setting out who will be responsible for the care of the child. The testamentary decision of the deceased is not legally binding (that is the person appointed as guardian cannot be forced to take on the care of the child) but the appointment under the will may be one of the factors the Court considers when deciding where the child or children should live. The mother’s nomination of a testamentary guardian can be challenged in court by other interested people such as grandparents, or in some cases the donor. The court’s decision as to who should take on the care of the child will depend on an assessment of the child’s best interests.

Clearly if the co-parent has had a significant involvement with the child and its development for several years, a court would be unlikely to discontinue this, as to do so would probably not be in the best interests of the child.

Disputes between a mother and donor

The issue of the role of a donor in a child’s life is also addressed under the family law.  We have covered some of this ground already. Recall that a sperm donor is not regarded at law as being a father, even if his name is on the birth certificate, and even if the donor is known to the mother.  As also noted previously in the context of financial issues, naming a donor on a birth certificate may have implications in relation to child support, Centrelink payments, and the issuing of passports.  Generally, donors are not liable to make child support payments unless they have made a promise to the mother to financially support the child.  It all comes down to the understanding of the parties and it is clearly wise to evidence any such agreements so that there is certainty in the event of a dispute in the future and one party wants to reneg on the deal.

A donor is able to apply for orders providing for contact with the child, if they have been prevented from forming a relationship.  Once again, the paramount consideration is the best interests of the child.  The case of Re Patrick () highlighted the myriad of problems that can potentially arise in donor situations.  In that matter, a former friend of a lesbian couple donated sperm, on the understanding that he would be able to develop a relationship with the child and spend regular time with him/her.  The relationship deteriorated, and the same sex parents withdrew all contact from the donor, and then only allowed contact under very strict terms.  The court looked at a number of issues, including:

• the nature of the donor’s relationship with the child;

• the level of involvement with the child;

• the intentions of the parties as to any ongoing role the donor would have in the child’s life;

• the impact and benefits of ongoing contact on both the child and the mother and co-parent; and

• the impact on the child of no contact with the donor/”father”.

The court found the parties had intended for the donor to be significantly involved in the child’s life and that ongoing contact was of benefit to the child.  Contact was granted to the donor on a gradually increased basis from a few hours each alternate Sunday, to each alternate weekend when the child reached school age. The case of Re Patrick  highlights the importance of parties being clear at the outset about what ongoing role, if any, the donor will have in the child’s life. Parties should seriously consider the need for a written agreement which deals with issues concerning the roles and expectations of the donor, particualrly where little or no involvement is desired by the mother and co-parent.  While such agreements are not usually legally enforcable, they can be useful as evidence of the parties’ intentions in any future court action.

In the absence of any intention to have a continuing relationship and donor, it is not the case that the donor has any automatic rights in regard to the child.The Family Law Act focusses on the rights of the child and not the rights or parents of others. Because the donor is not regarded as the legal father of the child, the court will not automatically make orders for the child to have contact with him. He can apply for parenting orders on the basis that he is a person concerned with the “care, welfare or development of the child.”

What of the donor’s liability to pay child support?

There is no legal liability on the part of the donor to pay child support. This is the case even where the donor may be registered as the father on the child’s birth certificate. Again evidence may need to be provided to establish that the person named on the birth ceritficate is in fact a donor: recall that some women chose for these reasons to omit the name of the donor from the birth certificate to save going through such intrusive procedures. Even though the donor does not have any legal liability to pay child support, this is not the case in the event that a promise has been made by the donor to provide support (remember the discussion about the Newcastle case: W v G).

What is the legal status of a written agreement between donor and the mother and co-parent?

Written agreements regarding the parties’ responsibilities and rights in relation to the child are not legally enforcable in Australia but are certainly useful as evidence of the parties’ intentions in any future court action. In fact, in the case of Re Patrick  the Family Court strongly recommended that parties entering into donor insemination arrangements enter into written agreements which set out the intentions of the parties. The process of making such an agreement can in itself be a useful exercise as a means of assisting the parties to think about and articulate their needs and/or expectations of the arrangement. This can also help prevent disputes arising in the future. There are sample agreements readily available and they can be tailored to suit the particular circumstances of the various parties involved. [Have available a collection of sample agreements which have been taken from a publication called ‘Talking Turkey’: a Legal Guide for Lesbian Mothers and Sperm Donors in NSW prepared by the Inner City Legal Centre, a community legal centre in Darlinghurst Sydney. 

Can the donor charge a fee for supplying semen?

Briefly it is illegal in NSW for a donor to charge for providing semen. The legislative authority for this is the Human Tissue Act  which prohibits “trade in human tissue” by anyone other than an authorised provider (such as a clinic). The penalty payable for breaching the provisions of this legislation is a maximum fine of $4,400 and/or 6 months imprisonment. The recipient of the service provided by the donor can agree to cover the costs of any medical procedures and other expenses connected with the process of donating sperm and any such reimbursement is not regarded as the sort of payment that falls foul of the Human Tissue Act.

The donor has to have certain screening tests performed ie screening for HIV, Hep B and C and syphilis. These tests can be paid for by the woman who receives the sperm donation but there is no compulsion to pay. The same would apply to test to ensure that the proposed donor is fertile: although one would think that there is a stronger call for this testing to be paid for by the sperm recipient. lications made by third parties, such as grandparents, aunts or uncles, for contact or residence of children.

Surrogacy

Surrogacy arrangements for gay male couples are rare given the illegality of commercial arrangements in most states and territories and certainly NSW. Altruistic arrangements between consenting individuals are generally not enforceable.

Where surrogacy is entered into by a gay male couple, neither party will have a presumption of parentage in his favour.

This does not preclude the couple from applying for a parenting order conferring on them both responsibility for long term care, welfare and development of the child. 

Parenting Plans under Part VII, Division 4 of the Family Law Act

Parenting orders are a different concept to parenting plans. These are not an option for same sex parents.

Section 63C of the Act provides a parenting plan is an agreement made between the parents of a child. Given the problems with the existence of a presumption of parentage under the provisions of the Family Law Act or state/territory law in most cases of same sex parents, they will be generally be outside the requirements before they can enter into a parenting plan.

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* Paper presented by Catherine Henry for ACON Hunter Branch at the Hunter Women’s Centre on 22 October 2005

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