Key legislation and recent reforms

Over the last decade there have been positive changes to recognise un-married couples and same sex relationships both at a state and federal level. Victorian legislation has also been introduced to remove discrimination in relation to accessing in-vitro fertilisation and artificial insemination services.

Introduction

This chapter looks at the law related to same-sex and de facto families. There have been a number of major changes to the Victorian and Commonwealth law over the past decade. In 2002 a raft of Victorian statutes were amended by the Statute Law Amendment (Relationships) Act 2001 (Vic) (“SLAR Act“) and the Statute Law Further Amendment (Relationships) Act 2001 (Vic) (“SLFAR Act“).

While it is still in common usage, the legal term “de facto relationship”, previously used to distinguish unmarried heterosexual couples from married couples, was replaced by the legal term “domestic relationship” (see Recent reforms to Victorian laws below) , to include couples in a relationship regardless of gender. The main purpose was to remove discrimination and to bring the status of same-sex relationships more in line with those of unmarried heterosexual relationships.

In 2008 and 2009 a vast number of Commonwealth laws were amended to recognise same-sex relationships and parenting and to remove existing discrimination (discussed further below). The amended Acts Interpretation Act 1901 (Cth) introduces a new definition of “de facto partner” that relies on the relationship status irrespective of gender. There are two circumstances that satisfy the Commonwealth definition of de facto relationship:

  1. if the relationship is registered under a prescribed state or territory law (e.g. the Australian Capital Territory, Victoria and Tasmania registration schemes); or
  2. the relationship is characterised by a set of factors such as duration, sex, common residence, care and support of children and financial inter-dependence, etc.

At a state level in relation to parenting and children, in December 2008 Victoria passed the Assisted Reproductive Treatment Act 2008 (Vic) (“ARTA“) to remove discrimination in relation to accessing in-vitro fertilisation (IVF) and artificial insemination (AI) services and to secure the legal status of children with same-sex parents. In particular, the ARTA replaced the Infertility Act 1995 (Vic) and amended both the Status of Children Act 1974 (Vic) (“SoCA“) and the Births, Deaths and Marriages Registration Act 1996 (Vic) (“BDMR Act“).

Recent reforms to Victorian laws

Domestic relationships

The Victorian SLAR Act (and the subsequent SLFAR Act) changed a range of state Acts to introduce the legal concept of “domestic relationship”. The objects of the Act are:

  • to recognise the rights and obligations of partners in domestic relationships where there is mutual commitment to an intimate personal relationship and shared life as a couple, irrespective of the gender of each partner; and
  • to prevent discrimination under legislation specified in the Schedules by ensuring that all couples irrespective of gender have the same rights and obligations while at the same time recognising the importance of a commitment to a long-term relationship and the security of children.

Approximately 55 Acts were amended, mainly concerning property, inheritance, stamp duty, compensation schemes, superannuation, health, guardianship, employment, criminal and consumer laws. All amended statutes took effect by July 2002. The amendments introduced the legal concept of domestic relationship, defined either narrowly or broadly depending on the particular obligation or benefit listed in the SLAR Act schedules 1 to 7.

The narrow or principal definition of domestic relationship is “a person to whom the person is not married but with whom the person is living as a couple in a genuine domestic basis irrespective of gender”.

Discrimination

Discrimination on the grounds of “gender identity”, “lawful sexual activity” and “marital status” is prohibited under Victorian law. As a result of the SLAR Act “marital status” now includes being a “domestic partner” for the purposes of the Equal Opportunity Act 2010 (Vic) (“EO Act“). The definition of “relative” also extends to certain family members of a person’s domestic partner.

Legislation that excludes or is plainly limited to certain classes of persons or relationships is not a kind of discrimination that can be challenged under the EO Act. On the other hand, if, for example, a child care centre were to refuse to provide a service to an unmarried individual or persons in a domestic relationship, the EO Act may be of assistance.

Complaints about discriminatory state legislation can, however, be successful where it can be shown that there has been a contravention of a Commonwealth anti-discrimination law (see Jenni Millbank (1997) “Every Sperm is Sacred?”, Alternative Law Journal, 22, 3, pp. 126″“9; altlj.org).

State legislation ““ assisted reproductive treatment and surrogacy

The ARTA was passed on 4 December 2008 and was fully operational by 1 January 2010. It corrected major discriminations against same-sex parents and provides legal security for children of same-sex parents, including the following:

  • a woman and her partner, if any, and irrespective of gender, can access assisted reproductive technology (ART) procedures if the woman is “unlikely to become pregnant” without that assistance;
  • the SoCA is amended to provide that the female partner of the birth mother is presumed, for all purposes, to be the legal parent of any child born as a result of the pregnancy if she was the partner at the time of the procedure and she consented to the procedure;
  • the man who produced the semen is presumed for all purposes not to be the father, whether or not he is known to either woman;
  • these presumptions are irrebuttable (not open to question) and prevail over any conflict, except in relation to surrogacy arrangements;
  • the Act provides for the registration of the non-birth mother as the parent on the child’s birth certificate;
  • the ART provider must provide the donor’s name to the Registrar of Births, Deaths and Marriages, which can then be disclosed to the child, the parents, the child’s descendants or the donor by application to the registrar;
  • the ART Act opened up “altruistic” (unpaid) surrogacy in Victoria as an option for gay men to become parents, and allowed for recognition of parents (including both partners in a gay male couple) of children conceived through surrogacy agreements. ART providers may carry out procedures under surrogacy arrangements if approved by the Patient Review Panel established by the Act;
  • commercial surrogacy is illegal in Australia. However, in Victoria, it is not illegal to travel overseas for the purpose of commercial surrogacy. Although, this is illegal for residents of the ACT, NSW and Queensland;
  • the commissioning parents of a child born under a surrogacy arrangement can apply for a substitute parenting order, which irrebuttably presumes the parents will be named as the child’s legal parents where both parents consented to the arrangements.

Application forms and information on the changes can be obtained from the Births, Deaths and Marriages Registry at bdm.vic.gov.au. For more information, visit the Rainbow Families Council at rainbowfamilies.org.au.

Case study: the status of sperm donors

Groth and Banks [2013] FamCA 430 involved a single woman not in a relationship with the man who provided a sperm donation for her to undergo an artificial conception procedure at an IVF clinic.

The sperm donor sought parenting orders that he spend time with the child, and a declaration that he is a parent of the child.

The court declared him to be a parent of the child, ordered shared parental responsibility and substantial periods of overnight contact.

The court found that under various provisions of the Family Law Act 1975 (Cth) (“the FLA“), a reference was made to “both parents”, implying that it was not possible to have more than two legal parents of a child.

The birth mother was presumed to be a parent by virtue of section 60H of the FLA.

The mother’s argument ““ that the sperm donor was not a parent by virtue of section 60H(1)(d) of the FLA, which provides conclusively that the child is not the child of the donor of genetic material ““ was rejected by the court. The court held that the displacement of parentage on the part of the donor in s 60H(1)(d) does not apply because none of the s.60H(1) categories applied in this case. The determinative factor being that the mother was not married or in a de facto relationship.

The court accepted that the sperm donor in this case provided the sperm donation with the express intention of parenting the child; and on the basis that s 60H did not preclude him from parentage, the court declared him to be a parent of the child. The court held that in these circumstances, that is, where a sperm donor is considered to be a parent under the FLA (because the mother was single), then the provision in the SoCA which conclusively presumes the sperm donor not to be a parent does not apply because it is inconsistent with the FLA. s. 109 of the Constitution provides that where there is an inconsistency between a State law and a Commonwealth law, the latter prevails to the extent of the inconsistency.

It remains clear, that if the birth mother had been in a married or de facto relationship at the time of conception, her married or de facto partner (regardless of gender) would have a presumption of parentage under section 60H(1)(c) of the FLA activating the displacement of parentage on the part of the sperm donor in s 60H(1)(d).

For lesbian couples using a known donor ““ provided they were in a de facto relationship at the time of conception and the non birth mother consented to the conception procedure ““ they will both be presumed a parent of the child and a declaration of parentage will not be available to the sperm donor. There will be no inconsistency between Commonwealth and State laws, and accordingly the SoCA provides that a man who produced the semen is presumed for all purposes not to be the father, whether or not he is known to either woman.

Recent Commonwealth reforms

The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) amended the FLA with two major reforms.

First, it brought de facto (redefined to include same-sex couples) property matters within the jurisdiction of the Family Court. Couples who separated prior to 2 March 2009 can opt into the Family Court jurisdiction by consent. Among other advantages, this now enables same-sex and heterosexual de facto couples to benefit from the superannuation splitting provisions of the FLA and to have the care and control of a child of the relationship taken into account in property settlements and maintenance (ss 60 EA, 60HA, 60H(1), 90RB, 90SF FLA).

Second, the amended FLA now conclusively presumes that the non-birth mother (“the intended parent”) of a child born through artificial conception procedures is the parent of the child (s 60H(1)). In relation to surrogacy, if a court has made a substituted parentage order, then the child is the child of the parents named in that order (s 60HB(1)).

However, note the federal government has made it clear that it will not remove the current discrimination in relation to marriage, nor will it permit same-sex couples to adopt children.