Same-sex parenting

Introduction

There are two layers of law that are relevant for same-sex parents in Queensland. Commonwealth laws and Queensland laws. Queensland laws that apply include laws about who are recognised as the parents of the child and registration of births. Commonwealth laws that apply include laws about who are recognised as the parents of the child, child support, family tax benefits, Medicare and superannuation.

Queensland Laws

Do Queensland laws recognise same-sex parenting relationships?

From 1st June 2010 the answer is yes.

If a birth mother undergoes a fertilisation procedure with the consent of her female defacto partner (the non-birth mother) then both the birth mother and non-birth mother are irrebuttably presumed to be the parents of the child born as a result of that procedure. It does not matter whether the fertilisation procedure is done through a fertility clinic or privately.

For the presumption to apply the couple must be living together in a defacto relationship at the time the child is conceived. A defacto relationship is defined as two people living together as a couple on a genuine domestic basis who are not married to each other or related by family. There is a list of criteria that are considered in deciding whether or not a defacto relationship exists.
The non-birth mother is presumed to have consented to the fertilisation procedure unless the contrary is proven.

What about a child born before 1st June 2010?

The good news is the presumption about parentage applies to all children born to a lesbian couple, regardless of whether the child was born before or after 1st June 2010.

What about the donor?

Under Queensland laws the donor has no rights or liabilities in relation to the child. This applies equally to a known donor where conception occurs without the involvement of a fertility clinic.

What if we use a donor egg?

If a donor egg is used then the donor of the egg has no rights or liabilities in relation to the child and the birth mother and non-birth mother are irrebuttably presumed to be the parents.

Birth Certificates

Can the non-birth mother be named as a parent on a birth certificate?

From 1st June 2010, an application to register the birth of a child may name the birth mother and non-birth mother as the parents of the child and they will then be recorded as such on the birth certificate. The birth mother is noted on the birth certificate as the “mother” and the non-birth mother as the “parent”. For an opposite sex couple the father is now noted as a “parent” not “father”.

Our child was born before 1st June 2010, can we now change the birth certificate to include the non-birth mother?

The non-birth mother may be added as a parent to the birth certificate of a child born before 1st June 2010.
For this type of application to be made:

(a) The birth mother and non-birth mother must have been living together as a defacto couple at the time the birth mother underwent the fertilisation procedure by which the child was conceived and
(b) The non-birth mother must have consented to that fertilisation procedure.

If these criteria are met then the following additional requirements must be met for an application to include the non-birth mother on the birth certificate as a parent:

  1. The application must be made in the approved form – the approved form can be found at http://www.justice.qld.gov.au/justice-services/births-deaths-and-marriages/same-sex-parenting-presumption. The application includes a statutory declaration by the birth mother and non-birth mother stating that:
    1. they were living together in a defacto relationship at the time the child was conceived; and
    2. the non-birth mother consented to the fertilisation procedure.
  2. The application must be made jointly by the birth mother and non-birth mother.
  3. There must be no-one registered as the father on the birth certificate for that child. If there is a father registered then it is necessary to apply to the Supreme Court for an Order to remove the father’s details and for those details to have then been removed from the birth registration details before any application can be made to include the non-birth mother. The reason for this is that no more than two people may be included on any birth registration as parents.
  4. The prescribed fee must be paid.

Commonwealth Laws

Do Commonwealth Laws recognise same-sex parenting relationships?

In December 2008 the Commonwealth government introduced laws about the children of same-sex couples. These laws:

(a) Apply to any child or children born to a same-sex couple during their relationship as a result of an artificial conception process consented to by the non-birth mother;
(b) Legally recognise the child or children as the child or children of both of the couple regardless of who was the birth mother;
(c) Specifically state that the donor is not legally a parent of the child or children.

If the child or children is born during the relationship, the non-birth mother is deemed to have consented to the artificial conception procedure unless it is proved she did not consent.

What if my child was born before the new laws were introduced?

The Commonwealth laws apply to all children, regardless of whether they were born before or after the laws were introduced.

What sort of situations do the Commonwealth recognition of same-sex parenting apply to?

Family Court:
The children born to a same-sex couple are recognised as the children of both same-sex parents by the Family Court in any property dispute between the couple.
If the couple separate, the Family Law Act regime that applies to heterosexual couples for resolving any parenting disputes about who children live with and spend time with now applies to the same-sex couple.

Child Support:
From 1st July 2009 the child support laws apply to same-sex parents in the same way as they apply to opposite sex parents. This means if a same-sex couple separate, either parent may apply for a child support assessment against the other parent. Because a donor is not recognised as a parent, they are not liable to pay child support.

Generally:
Both same-sex parents are recognised as the parents of the child or children across various commonwealth legislation including:
Superannuation – the children are able to be recognised as eligible for reversionary benefits and reversionary death benefits. You should check with your superannuation fund whether they in fact recognise children of a same-sex couple for these purposes:

  • Medicare and PBS safety net
  • Tax – including claiming children as dependents
  • Family Assistance entitlements