Wednesday, 9 July 2008

Lesbian couple obtain orders- without having to go to court

A failing of the Family Law Act, so far as same sex couples are concerned is the ability to properly recognise children.

I say "the Family Law Act", but that's not strictly correct- it's under the Family Law Act and related State legislation, such as the Queensland Status of Children Act.

The problem has arisen in part through the use of technology- IVF, ART and also through surrogacy, so that "parents" may not just be the biological parents of a child any more, but may be:
- a lesbian couple
- a lesbian couple and a gay father
- a lesbian couple and the gay father and his partner
- a gay couple

Only New South Wales is tackling the problem, and doing so only for lesbian couples. New South Wales Attorney- General John Hatzistergos was quite clear that he was not going to legislate to assist gay couples. There is still an issue in NSW about whether gay fathers, who want to be recognised, can be recognised, given that the recent amendments will still allow only two parents to be recognised on the birth certificate.

In Queensland, Attorney-General Kerry Shine announced that the fathers to lesbian couples would not be recognised on the birth certificates. I twice sought clarification from his office about whether this applied only for anonymous sperm donors in IVF clinics, or also where the sperm donor is known to the lesbian couple. I was told the matter would be "looked into" but I have still not received an answer.

For lesbian couples, with the possible exception of New South Wales, the only sure step is to obtain orders from the Family Court or the Federal Magistrates Court. Yes, it may be possible to adopt, even in Queensland, but this could be a very expensive and uncertain option.


Why obtain orders?

It may seem unnecessary to obtain orders- after all - we love each other and love our baby. Into this paradise strode the case of Verner and Vine- where female friends lived under the one roof for several years, bought a house together, even went to the IVF clinic and told the clinic that they were a lesbian couple, but were found by the Family Court NOT to have been a couple, with devastating results to the woman who asserted that they were an item.

Relief was in hand following the decision in Re Mark, where the Family Court made orders recognising that both gay partners were equally responsible in all respects for the care of their child.

Interestingly, if Re Mark were repeated today, where the child was conceived through surrogacy in California, then rather than go down the Family Court path the couple might have been able to obtain an adoption order in California, which in turn would have led to a new birth certificate, on which both partners were named as parents. This birth certificate would be recognised for all purposes, in Queensland at least.

Lesbian clients of mine recently obtained orders from the Family Court along the lines of Re Mark- both my clients are recognised for all purposes to make decisions for their child. What was unique about their case is that this is the first time, I am told, that these orders were made in Brisbane without the need to appear in court. Orders were able to be made on the papers- by our lodging the documents through the court and having them dealt with in the Registry.

Unlike Re Mark:
- my clients did not have to turn up in court
- my clients did not have to be interviewed for a family report

What a relief!

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