Parenting

Becoming A Parent
Many people in same sex and alternative relationships are considering having children. Some options and their legal implications are discussed in this section. It is most important that all parties concerned - those considering becoming parents and those considering being a donor - get legal advice before the child is conceived. The way a child is conceived can make an important difference to the parents’ rights and responsibilities.

Reproductive technologies
In Western Australia, the provision of reproductive technology is covered by the Human Reproductive Technology Act 1991 (WA). The Act permits the use of reproductive technology (such as IVF and artificial insemination) by any woman - whether single, married or in a de facto relationship with somebody of any sex. Artificial insemination services are available to all women, whether or not they are medically infertile. Assisted reproductive technology (such as IVF) is only available to women who demonstrate that they are medically infertile, either by an infertility evaluation, or where attempts by artificial insemination or other methods have failed. It is also available to a woman whose child would otherwise be likely to be affected by a genetic abnormality or disease.

Self-insemination
Under the Human Reproductive Technology Act 1991 (WA) it is an offence for a person to cause or permit an “artificial fertilisation procedure” to be carried out except under a license. The penalties specified in the Act include a fine or imprisonment. Many people are using self-insemination at home using a sperm donor as an alternative but because these arrangements are private the law is extremely difficult to enforce. The conception method can also determine who the law says the child’s parents are. You should seek legal advice before using this method of conception.

There are also risks for both the woman and the baby in not getting adequate health advice, e.g. risk of infection. A doctor can advise you about appropriate timing, pre-pregnancy testing and testing of the donor for potential transmissible infections. If you are considering this option you can also contact a support group (see Where to get help).

Adoption
Adoption law is State law (Adoption Act 1984 (WA)). Singles and couples of any sexuality or gender are permitted to adopt in Western Australia. They are assessed under the same terms as other singles and couples. For couples you normally have to have been in the relationship for at least three years, and not married to or in a de facto relationship with any other person during that time. Step-parent adoptions are available to de facto couples where one member of the couple is the child’s birth parent.

When an adoption order is made, the child becomes a child of the adoptive parents, and ceases to be a child of his or her birth parents. A non-biological parent usually can’t adopt their partner’s child without the birth parent’s consent. If the non birth mother of a child is recognised as a parent under the Artificial Conception Act, she cannot adopt the child (as she is already a parent). The Adoption Act also recognises her status as the child’s parent and so her consent to adopting the baby out will ordinarily be required.

The good news…
Adoptive parents automatically have parental responsibility for a child. Where an adoption order is made under the Adoption Act in favour of a same sex couple for example, the child will have two mothers…or two fathers.

The Birth Mother’s Partner
Where the partner of the child’s birth mother is defined as a parent of the child, then in Western Australia they have all of the rights and responsibilities of parents that arise under WA laws (see below for information on some relevant federal laws). Where the co-parent is not considered legally to be the child’s parent (under the Artificial Conception Act (WA) - see above), they may have limited rights. See discussion below on co-parenting

Sperm Donors

Anonymous Sperm Donor
A sperm donor who donates sperm anonymously through a fertility treatment clinic is not recognised legally as a parent of the child. At present, if the sperm donation has been done through a clinic, the child will not be able to find out who the donor is. They will have access only to non-identifying information. It has been suggested that a change to the law in this area should be considered. Keep informed

Known Sperm Donor
The legal position of a known sperm donor is not clear-cut. However, he can apply for a parenting order (see below).

Before you start trying to conceive, it is very important for everyone involved to think through and discuss issues such as: the level of contact with the child, financial arrangements, decision-making about the child’s upbringing, what will happen in the event of a breakdown in the relationship between the relevant adults and so on.
You will also have to decide whether to name the donor as a parent on the Birth Certificate (see below).

It may be a good idea to make a written agreement between the people involved. It isn’t legally enforceable, but it is evidence of your intentions. This may be useful if there are problems later on. The agreement should be reviewed as the child grows up.

Known Donor can apply for a parenting order
A known sperm donor of the child can apply for a parenting order as a ‘person concerned with the care, welfare and development of the child’ OR where it is relevant, as the child’s parent. (See below for an explanation of parenting orders.) This might happen because:

• the lesbian parents want the donor to have recognised decision-making responsibility, e.g. in relation to medical decisions, or
  
• the donor is in dispute with the lesbian parents about involvement and contact with the child.

Should we name the known donor on the Birth Certificate?
Both ‘parents’ are expected to sign a birth registration form. In some cases, the “parents” will be the child’s birth mother and her de facto partner. In other cases, the “parents” may be the birth mother and the known donor. If the donor is to be named on the child’s Birth Certificate, he must sign the registration form. Consider this carefully as there are some legal consequences (see p.34). Get legal advice about whether the donor or de facto partner is a parent or not.

If you decide not to name the donor, you may have to give the Registrar of Births, Deaths and Marriages a statutory declaration either saying that the father is unknown or explaining the circumstances. (As self-insemination may be illegal under the Human Reproductive Technology Act, you may need legal advice on this.) Note that it is an offence under the Births, Deaths and Marriages Registration Act 1998 to make a false or misleading statement in a birth registration form.

The Registrar may refuse to issue a Birth Certificate if you say that you have used a known donor, but not through a clinic, and you do not wish to give the donor’s name. If you have conceived through a donor program run by a clinic, you can give the Registrar a letter from the clinic to prove that there is no legal father.

For more information, contact the Registry of Births, Deaths and Marriages on 9264 1555.

Consequences of naming known donor on Birth Certificate

• Paternity for inheritance purposes
  Naming a known donor on the Birth Certificate automatically establishes kinship. The same outcome can be achieved if the donor names the child as beneficiary in his Will.
  See the Death and Inheritance section for information about inheritance rights.
  
• Social security
  Centrelink policy is that the biological mother is not eligible for social security benefits unless she first tries to get child support from the father named on the Birth Certificate. If they insist on this, even after you tell them that the child was conceived through artificial conception, you can appeal to an authorised review officer and then the Social Security Appeals Tribunal. Alternatively, if you are the donor and an application for child support is accepted by the Agency, you may lodge an appeal in the Family Court.
  
  Note that it is an offence under the Social Security Act to make a false or misleading statement.
  
• Passport
  A father registered on the Birth Certificate is required to give his consent (by signing the application) before the child can get a passport.

Living With Or Parenting Children
Gay men and lesbians live with and parent children in many situations. Legal rights and responsibilities in relation to those children can be complex, particularly if they are conceived using reproductive technology or self-insemination.

This is a new area of law that is still developing and many of the issues haven’t been fully tested in court. The law in Western Australia is a complex mix of State and Federal laws. The following information should not be relied on as legal advice about your particular case.

Parental responsibility
The Family Court Act 1997 (WA) applies in WA where the parents of a child were never married. The Act says that both parents of a child have responsibility for their care, welfare and development – regardless of whether they are married, separated or have never lived together. The term ‘parent’ is used throughout the Act, and includes a person who is a parent under the Artificial Conception Act. The Act stresses children’s rights and best interests, NOT parents’ rights. The interests of the child are “paramount” in the Family Court’s decisions about parenting and contact arrangements. Unless it is not in their best interests, children have a right to know and be cared for by their parents and a right to have regular contact with their parents and other ‘significant’ people.

Who is considered a ‘parent’?
For the purposes of Western Australian laws (unlike in other States), the parents of a child are defined in part in the Artificial Conception Act 1985 (WA). Under federal laws (such as the Child Support Act, and the Family Law Act which applies to children outside of Western Australia), the non birth mother may not be recognised as a parent.

Mothers: Where a woman who is in a de facto relationship with another woman undergoes, with her partner’s consent, an artificial fertilisation procedure, both women are defined as a child’s parents. For the purposes of federal laws (such as the Child Support Act, and the Family Law Act which applies to children outside of Western Australia), the non birth mother may not be recognised as a parent.

Donors: With sperm donors, it depends on the situation as discussed above. Where a man (who is not the woman’s partner) donates sperm used in an artificial fertilisation procedure in a clinic, he is not the father of the child.

The law in this area is quite technical – the definition applies only if the women are in a “de facto relationship” (see the Relationships section) and if the method of conception meets the definition of “artificial conception procedures” in the Human Reproductive Technology Act. However, there are practical steps that birth mothers, non-biological parents and known sperm donors can take to clarify their roles and strengthen their legal position. These issues are discussed above and below.

Co-Parenting – caring for your partner’s children
The following discussion applies where the co-parent is not a legal parent of the child. There are steps you and your partner can take to clarify and strengthen the legal position of the co-parent.

1. Parenting agreement
   You can make an agreement that sets out such things as:
   
   • your intention to share parenting,
   • how you will care for the child financially,
   • the role of the sperm donor.
   
   This agreement is not legally binding, but it is evidence of intention. The agreement should be reviewed as the child grows up.
   
2. Parenting order
   You can formalise your agreement and give the non-biological parent ‘parental responsibilities’ through a parenting order made by the Family Court (see Court Orders below). This allows a non-biological parent to have legally recognised decision-making rights in relation to the child. Family Court orders can be changed if circumstances change. You will be required to serve a copy of the application on the donor if he is a parent of the child (and in some cases, even if he is not). It may help your case if you include an affidavit from him saying that he supports the application. The court will consider whether you are in a stable and committed relationship and whether it is in the child’s ‘best interests’ (see Court Orders below). The court may ask a counsellor to prepare a family report to help them make a decision.
   
3. Make a Will
   If the birth mother’s partner wants their child to inherit their property after they die, the partner must make a Will naming the child as a beneficiary if they are not the child’s parent. This is because the law doesn’t consider the co-parent to have a kinship relationship with the child. They should get advice and have the Will drafted properly, to avoid it being challenged in Court. (see Death and Inheritance section)
   
4. Testamentary guardianship
   The biological parent can name the other parent as guardian of the child in their Will. This means that if the biological parent dies, there are clear instructions about who should have responsibility for the child. Although this is important, it will only have effect if no other person has parental responsibility for the child at the time of the biological mother’s death.
   
   If there is a dispute about guardianship, the Family Court can be asked to make a parenting order. The court would consider the child’s best interests and look at:
   
   • the previous relationships between the child and the relevant adults, including what kind of role they’ve had in the child’s life,
   • what the biological parent wanted,
   • what the child wants, if they are old enough.

Dispute with the biological parent
If a couple separates, a co-parent can apply to the Family Court for a parenting order as a ‘person concerned with the care, welfare and development of the child’ or as a parent, where this is the case. There have been very few cases, so it is hard to predict the outcome. Get legal advice.

Separation And Disputes
The Family Court Act (a WA law) covers disputes in relation to children under the age of 18 whose parents were never married. The Family Court Act in some cases also covers property disputes between couples in same sex de facto relationships

Try to reach agreement first
Under the Family Court Act people must try to reach agreement about what happens to children if the relationship breaks down. The Family Court has counselling and mediation services that can help you reach agreement. Legal Aid also runs a mediation program, and private mediation services are available. An agreement can be made informally, with no court involvement. If you want your agreement to be legally binding, you can ask the Family Court to make consent orders.

You’ll need help from a lawyer to do this.

If you can’t agree – residence and contact disputes
You can apply to the Family Court for a parenting order (see below).

If you can’t agree – financial support for children
WATCH THIS SPACE: There are several possible places where financial support for a child may be dealt with. The law is complex and largely untested. You should always seek legal advice.

• Child Support
  In cases heard in the Eastern States, the Family Court decided that
  
  - in a case of artificial insemination conducted at home, a non biological mother and sperm donor (who was not married to, or a de facto partner of the birth mother) were not recognised as parents of the child – irrespective of their private agreement. The donor was not liable for child support; and
  
  - in a 2003 case where a child was conceived by sexual intercourse between the sperm donor and the child’s lesbian birth mother, the donor was liable for child support even though the lesbian couple had agreed that he would have no contact with, or be financially responsible for the child. (In some cases, a mother may be required by law to apply for child support even if she does not wish to).
  
  A non-biological parent with whom the child lives after separation can apply for child support payments from the biological parent through the Child Support Agency. But if the child lives with the biological parent, it would seem the non biological parent can’t be ordered to pay Child Support by the Agency because they aren’t considered to be a ‘parent’ legally (nor are they liable for child maintenance under the Family Law Act).
  
  There are technical differences between the law in WA and elsewhere in Australia that may mean these cases don’t directly apply. Get Legal advice
  
• Child maintenance
  Under the WA Family Court Act, where the Child Support Act (Cth) doesn’t otherwise apply, the “parents” of a child may be required to pay child maintenance. This legislation is untested.
  
• Civil courts
  It may also be possible for both donors and non-biological parents to sue (or be sued as) a person who agrees to financially support a child before it is born, but then backs away from this agreement. In a 1995 case the NSW Supreme Court said that because the non-biological mother agreed to support the children, was involved in the act of conception and was a parent to the children, she must continue to support them even though the mothers had split up. In this case it was significant that the non-biological mother had the financial capacity to do so.
  
  This is an expensive option, and has not been tested in the Supreme Court of Western Australia.

Court Orders - Parenting
There are four types of parenting order:

• Residence order – who the child will live with.
  
• Contact order – what contact the child will have with a parent or other significant person.
  
• Specific issues order – any other aspect of day-to-day or long-term parental responsibility, e.g. religion, medical treatment, education, extra-curricular activities.
  
• Child Maintenance order – an order deciding how much money a parent must pay the main carer for supporting a child.

Who can apply for a parenting order?
An application can be made by a child’s parents, or anyone ‘concerned with the care, welfare and development of the child’. This can include the mother’s partner, or a known sperm donor.

How the court makes its decision
The court’s decision is based on ‘the best interests of the child’. The factors a court must consider include:

• the child’s relationship with each parent and any other significant adult (e.g. who has been the primary carer?),
  
• the capacity of each parent to provide for the financial, emotional and intellectual needs of the child,
  
• any family violence affecting the child,
  
• significant cultural issues – including the need to maintain ties with a child’s cultural heritage;
  
• the current living arrangements and likely effect on the child of a change,
  
• the child’s wishes – depending on their maturity.
  Given the diversity of families that might be created through artificial insemination and that the law is so new outcomes are difficult to predict.

Relevance of parent’s sexual orientation
A parent’s sexual orientation is not relevant unless the court believes in the particular case that it will affect the best interests of the child. The court is more concerned about who the primary carer has been and what the child’s relationship with each parent has been. However, judges vary and sometimes the sexual orientation of a parent becomes a factor. If your sexual orientation becomes an issue in the Family Court, you should get advice about how to present evidence to the Court about it.