Written by Dr Malcolm Stoddart

As a divorced gay lawyer with four children from my first (heterosexual) marriage the trauma and emotion of separation and perhaps divorce of gay and lesbian couples cannot be exaggerated. In my case, my ex-wife and I remained somewhat calm minimising the great legal expense of the fight.

This week we celebrate the Sydney Mardi Gras.

We also celebrate same-sex marriage. Did you know that 20% of lesbian couples are raising children and 5% of gay couples? For them, the law is much the same as for heterosexual couples but there are points of difference. I am restricted to 700 words so I will refer you to four possible steps to take to protect your children and your rights and to two web resources.

On this website, we find the Australian Human Rights paper on this complex issue. Among a number of definitions are Lesbian birth mother; co-lesbian birth mother, gay birth father, co-gay birth father and social parent.

The following are excerpts from Chapter 3 highlight significant complexity and difference.

“The best interests of children, Family Law looks at the role of ‘both of their parents’ and ‘other people significant to their care, welfare and development.’ A family is defined by law and has enormous impacts on the financial and work-related entitlements available to help children.

Family Law Framework applying to children and their parents

Parents and ‘other people significant to care’ in an opposite-sex family. A child born to an opposite-sex couple will generally have a birth mother and birth father and both will be legal parents. However, a child being cared for in an opposite-sex family may well have other people significant to their care and welfare.

The ‘other people’ significant to the care’ of a child by an opposite-sex family are typically the subsequent partners of separated birth parents (social parents). Social parents can formalise their partnering relationship by applying to the Family Court of Australia for a parenting order. However, a social parent with a parenting order will not always have the same financial and work-related entitlements as the birth mother or birth father. In some States, parenting orders may be in the jurisdiction of the Supreme Court.

Parents and ‘other people significant to care’ in a same-sex family. A child born into a lesbian couple will generally have a birth mother and lesbian co-mother. The birth mother will be a legal parent under the current family law system. A child born to a gay couple will often have a birth father and a gay co-father, as well as a birth mother.

Alternatively, a child may have two gay co-fathers as well as a birth mother. If there is a birth father, he will be a legal parent. The lesbian co-mother or gay co-father(s) can apply to the Family Court of Australia for a parenting order, as ‘other people significant to the care, welfare and development’ of the child. But the lesbian co-mother and gay co-father(s) will be treated in the same way as a social parent is treated under the law; they will not be treated in the same way as a birth parent.

In other words, federal law does not currently recognise the distinction between a person who is a subsequent partner of a birth mother or birth father, and a person in a same-sex couple who is either a partner of the birth mother or birth father or an active co-parent at the time a child born.

This means the lesbian co-mother or gay co-father(s) may be denied financial and work-related entitlements available to a birth mother and birth father, even though they are the original and intended parents of the child.

Dr Christy Newman is quoted on the ABC Blog: The couple had two children, and Dr Newman was the biological mother. This was despite the fact that Dr Newman and Ms Richert applied for a parental consent order within weeks of their eldest being born. “I had to keep reminding people that actually, we put in place all kinds of legal protection so even if I did go a bit mad at that point and wanted more access, I couldn’t,” she says.

However, Dr Newman believes without that forward planning, things would not have gone so well. Luckily, the pair were able to track down a financial advisor who was also a same-sex parent.

“There was real shock and sadness, as there always is with a separation,” she says.

“In several situations, there was a lesbian counsellor who didn’t necessarily believe that the non-biological parent should have much time after the separation.

There are still challenging circumstances.

Dr Newman says seven years since her separation, her relationship with her ex remains amicable, but the pair still encounter frequent challenges as same-sex parents. “Just this week I had to renew passports for our daughters….. it still says mother and father as the only two options,” Dr Newman says.

Action:

• This Mardi Gras seek good legal counsel on your children’s rights;
• Should an adopting order be considered;
• Read the Human Rights Report;
• Review your existing Wills, Powers of Attorney, Guardianship and Advance Health Care Directive. OHL has a free 30-minute review.

Happy Mardi Gras
Dr Mal Stoddart