In Australia, same sex couples can access several options to help them have a baby. In some instances, two same sex parents are named on a birth certificate, in other instances, one is not named but still plays the role of a parent. Once the child is born, often clients at Joss Legal ask what their rights are in relation to parental responsibility.
Am I the Legal Parent?
To have parental responsibility, you will need to be deemed the child’s legal parent.
Under the legislation, a child’s two legal parents are generally the woman who bears the child and the male partner who has donated sperm. These are usually the people who are registered on the birth certificate, and they are presumed to be the parent of the child.[1]
Under the Artificial Conception Act (WA) 1985, the woman who undergoes artificial insemination is presumed to be a parent of the unborn child.[2] This automatically makes them the legal parent of the child.
A child born to a lesbian couple will generally have a birth mother and a lesbian co-mother. The birth mother will be a legal parent under the current family law system.[3] The co-mother will be considered the ‘other intended parent ’unless it can be shown that they did not consent to artificial insemination, or they were not in a de-facto relationship with the birth mother. The sperm donor is generally not considered a legal parent under the federal and state laws regulating artificial insemination.
A child born to a gay couple will often have a birth father and gay co-father, as well as a birth mother. Alternatively, a child may have two gay co-fathers as well as a birth mother.[4] If there is a birth father, he will be a legal parent.[5]
In WA, both parents in a lesbian couple or gay couple can be recorded on their child’s birth registration provided both parents consented to the fertilization procedure or they were in a de facto relationship at time of birth.
Who has parental responsibility?
Once you are deemed to be the legal parent, you have parental responsibility. Parents have parental responsibility for their children until they are 18 years old.[6] This responsibility is not affected even if the parent’s relationship changes.[7] Each parent has parental responsibility for their child, unless a court makes a parenting order or other decision transferring parental responsibility, or some part of it, to another person.
What is parental responsibility?
Parental responsibility is outlined in Section 61A of the Family Law Act 1975 (Cth)[8] (‘the Act’) as the legal term meaning all of the duties, powers, responsibilities and authority that both parents have in relation to their child.[9] The Act does not specify what duties or powers that parents have in relation to their children however there is a general idea of what parents should do.
It is important to note that parental responsibility not the same as equal parenting time or shared care. Shared care is a term that is often used to describe the legal concept of equal time spent with the child. There is no legal presumption about the amount of time children should spend with each parent.
The law presumes that it is in the children’s best interests for their parents to share parental responsibility.[10] The presumption does not apply if the child has been exposed to family violence or there has been child abuse within the child’s life.
If you are unsure as to your rights, please feel free to get in touch with us and arrange an appointment with one of our experienced solicitors.
[1] Family Law Act 1975 (Cth) s 69R.
[2] Artificial Conception Act (WA) s 6A(1)
[3] https://humanrights.gov.au/our-work/publications/same-sex-same-entitlements-chapter-5#:~:text=A%20same%2Dsex%20couple%2C%20lesbian,related%20entitlements%20as%20birth%20parents.
[4] https://humanrights.gov.au/our-work/publications/same-sex-same-entitlements-chapter-5#:~:text=A%20same%2Dsex%20couple%2C%20lesbian,related%20entitlements%20as%20birth%20parents.
[5] https://humanrights.gov.au/our-work/publications/same-sex-same-entitlements-chapter-5#:~:text=A%20same%2Dsex%20couple%2C%20lesbian,related%20entitlements%20as%20birth%20parents.
[6] Family Law Act 1975 (Cth) s 61C(1).
[7] Family Law Act 1975 (Cth) s 61C(2).
[8] Family Law Act 1975 (Cth) s 61A.
[9] Family Law Act 1975 (Cth) s 61B.
[10] Family Law Act 1975 (Cth) s 61DA(1).
