Same-sex and de facto couples and families

The Statute Law Amendment (Relationships) Act 2001 (Vic) (‘SLAR Act’) (and the subsequent Statute Law Further Amendment (Relationships) Act 2001 (Vic) (‘SLFAR Act’)) changed a range of state Acts to introduce the legal concept of ‘domestic relationship’.

The narrow 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’.

The objects of the SLAR Act and SLFAR 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 law. All amended statutes took effect by July 2002.

The amendments introduced the legal concept of a domestic relationship, defined either narrowly or broadly depending on the particular obligation or benefit listed in the SLAR Act (schs 1–7).

Relationships Act 2008 (Vic)

In December 2008, the Relationships Act 2008 (Vic) (‘Relationships Act’) came into effect. The goal of this legislation was to align the rights of couples in domestic relationships (i.e. de facto couples – whether same sex or not) with those of heterosexual and married couples.

Section 35(10) of the Relationships Act provides a broad definition of ‘domestic relationship’: 

the relationship between two adult persons who are not married to each other but are a couple where one or each of the persons in the relationship provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a relationship in which a person provides domestic support and personal care to the other person for a fee or on behalf of another person or organisation (e.g. charity). 

Under the Relationships Act, people in same-sex relationships or heterosexual domestic relationships have the right to register their relationship with Births, Deaths and Marriages Victoria. The registration process provides legal recognition of the relationship, as well as easier access to certain entitlements without first having to prove the existence of the relationship.

Section 4AA of the Family Law Act 1975 (Cth) (‘FL Act’) defines the term ‘de facto relationship’ and lists a number of factors that a court may consider when determining if a de facto relationship exists in the circumstances. Notably, section 4AA(5)(a) holds that a de facto relationship can exist between two persons of the same sex.

In the matter of Hoffman v Braddock [2019] FCCA 144, it was found that a de facto relationship did exist between the two parties even though they were not strictly living together at all times. More emphasis was placed on the nature of the relationship in coming to this decision. That is, it was found that the parties were in a de facto relationship because they had been together for 10 years, there was a clear sexual and romantic component to the relationship, the parties had bought a home together, and had a commitment to a shared life.

In the more recent case of Sampson and Sampson [2021] FCCA 1471, Justice Willis had to determine whether or not the parties’ relationship after they separated gradually changed into a de facto relationship. Justice Willis considered the factors listed in section 44A of the FL Act and found that a de facto relationship did exist between the parties. The key determining factors were the parties’ presentation to the public as a couple, their continuing sexual relationship, shared travel, shared raising of their children, and the pooling of their financial resources to share the load of living as a family.

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’, that is irrespective of gender for the purposes of the Equal Opportunity Act 2010 (Vic) (‘EO Act’).

Legislation that excludes or is plainly limited to, certain classes of people or relationships is not a kind of discrimination that can be challenged under the EO Act.

On the other hand, if, for example, a childcare centre refused to accept the child of an unmarried individual or of people in a domestic relationship, the EO Act may be of assistance.

The EO Act contains some religious exemptions to discrimination; for example, in sections 82 and 83.

In determining who should be offered employment and the conditions of that employment, section 14 of the Sex Discrimination Act 1984 (Cth) makes it unlawful for an employer to discriminate against a person on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status.

Also, complaints about discriminatory state legislation can 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).

In Sinopoli v Harrison (Human Rights) [2017] VCAT 355, VCAT decided that a clinical decision based on medical evidence may be right or wrong as a clinical decision but is not unlawful treatment. In this matter, the doctor’s decision to not offer treatment due to the risks involved was found to not be unlawful discrimination. VCAT held that it is not unlawfully discriminatory to withhold medical treatment if it is too risky or of no benefit. This decision could be significant in the context of treatments for gender dysphoria, where a risk–benefit analysis is undertaken by the treating physician.

The Assisted Reproductive Treatment Act 2008 (Vic) (‘ART Act’), which was fully functional by 1 January 2010, allows individual women, and women in heterosexual and lesbian relationships, to access assisted reproductive technology (ART).

The ART Act covers the following:

• A woman and her partner (if any, of either sex) can access ART to have a child if the woman is ‘unlikely to become pregnant’ or ‘unlikely to be able to carry a pregnancy’ without assistance (s 10(2) ART Act). Women who are at risk of transmitting a genetic abnormality or disease to a child born without assistance can also access ART (s 10(2)(c)). Previously, this clause limited access to ART to women who, for medical reasons, could not carry and deliver children, and thereby excluded single women and lesbian couples (see McBain v Victoria [2000] FCA 1009).
• Before receiving ART treatment, a woman and her partner (if any, of either sex) must receive counselling about consenting to the use of ART treatment (s 13 ART Act).
• If a birth mother has a partner at the time of the procedure who consented to using ART treatment, the partner is deemed to be a legal parent of the child; the partner is registered on the child’s birth certificate as a legal parent.
• In situations concerning a single woman or a lesbian couple, the man who produced the donor sperm is presumed to not be the father, regardless of whether or not he is known to either woman; this presumption is irrebuttable (s 10C(2) SoC Act).
• Where donor sperm is used, the donor’s name must be given to Births, Deaths and Marriages Victoria (BDM Victoria); this information may be disclosed to the child, the parents, the child’s descendants, or to the donor, by applying to BDM Victoria (see ‘Contacts’).

On 10 June 2020, the Assisted Reproductive Treatment Amendment Act 2020 (Vic) came into force. This Act amended the ART Act by removing requirements for criminal records and child protection orders to be checked before a woman can undergo treatment.

On 19 October 2021, the Victorian Government passed the Assisted Reproductive Treatment Amendment Act 2021 (Vic) (‘ARTA Act’) to:

a        expand the class of persons permitted to carry out artificial insemination;

b        amend requirements for persons providing counselling;

c        clarify the interpretation of the requirement for donor consent;

d        provide for consent to a treatment procedure to be withdrawn on separation of a woman and her partner;

e        prevent gamete donors withdrawing consent to use gametes after the formation of the embryo;

f        provide for reimbursement of costs incurred by a surrogate mother’s partner; and

g        recognise the surrogate mother’s rights in relation to pregnancy and the birth of the child.

The ARTA Act also adopts more gender inclusive language when referencing assisted reproductive treatment. It substitutes references to ‘men and women’  in the guiding principles of the Act with ‘individuals’.

Altruistic surrogacy

Altruistic surrogacy involves an unpaid volunteer surrogate (i.e. the birth mother) carrying a child for the intending parents. The surrogate may only be reimbursed for reasonable costs. In Australia, partial surrogacy, where the surrogate mother provides the egg, is illegal. A donor egg or an egg from the intending mother must be used.

Generally, the sperm is from one of the intending parents. Altruistic surrogacy is generally used by gay men or by women who are unable to carry a child but who want to have a biological child.

There is an assumption that the surrogate is the child’s legal parent. However, this can be rebutted by a substitute parentage order (s 19 SoC Act). Intending parents have six months to apply to the County Court or Supreme Court for a substitute parentage order. If approved (as is generally the case), the intending parents are named as the legal parents on the child’s birth certificate (ss 20, 21 SoC Act). This can include both males in a same-sex relationship.

As of November 2014, all children born in Victoria through an altruistic surrogacy agreement in another state have their parentage legally recognised.

Altruistic surrogacy must be approved by the Patient Review Panel (s 39 ART Act). This panel considers factors including the reasons for the surrogacy, the surrogate’s age and circumstances, and whether the people involved have received counselling and legal advice. 

For more information about the Patient Review Panel, see https://www2.health.vic.gov.au/hospitals-and-health-services/patient-care/perinatal-reproductive/assisted-reproduction/patient-review-panel.

(See also the case of Lamb v Shaw [2017] FamCA 769. In this matter, the genetic mother’s third cousin agreed to act as an altruistic surrogate.)

Commercial surrogacy

Commercial surrogacy is where the intending parents pay a surrogate to carry a child, and payment results in a material benefit or advantage to the surrogate beyond the reimbursement of reasonable costs. Currently, it is illegal for intending parents to engage in commercial surrogacy in Australia with a surrogate (s 44 ART Act).

In Victoria, it is not illegal for individuals and couples to travel overseas for the purpose of commercial surrogacy; however, this is illegal for residents of New South Wales, the Australian Capital Territory and Queensland.

Australian legislation does not automatically recognise intending parents as the legal parents of the child, even if the surrogate has relinquished all rights to the child. Further, unlike in altruistic surrogacy agreements, intending parents in a commercial surrogacy arrangement are unable to apply for a substitute parentage order as these orders are only granted for children conceived in Victoria (s 20 SoC Act). Overseas birth certificates listing the intending parents as the legal parents are not recognised in Australia.

It is possible for the donor father to apply for a declaration of parentage to become the child’s legal father, as was the case in Green-Wilson and Bishop [2014] FamCA 1031. However, it is unclear whether this continues to be the current position of the law.

In the case of Bernieres and Dhopal [2017] FamCAFC 180, the Full Court of the Family Court of Australia refused to grant a declaration of parentage to the biological father of a child conceived through an international commercial surrogacy agreement. The court held that the FL Act (s 60HB) ‘covers the field’ in relation to children born under surrogacy agreements. It follows that section 60HB of the FL Act leaves it open to each state and territory to regulate the status of children born through surrogacy.

A parentage order establishes the intending parents as the child’s legal parents. Consequently, the intending parents are granted all the rights and privileges of a regular parent.

A parental responsibility order is one step below a parentage order. It confers on the intending parents the right to make parental decisions on behalf of the child. However, the intending parents are not recognised as the child’s legal parents. Consequently, once the child turns 18, there is no legal connection between the intending parents and the child. The child is not legally recognised as a ‘child’ of the intending parents in their wills, and special provisions must be made to explicitly leave the parents’ estate to the child if the intending parents wish to do so.

If the donor parent’s parentage is established, their partner will be able to adopt the child and also become a legal parent.

Groth and Banks [2013] FamCA 430

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 was the child’s parent. 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 FL Act, reference was made to ‘both parents’, implying that it was impossible to have more than two legal parents. The birth mother was presumed to be a parent by virtue of section 60H of the FL Act.

The mother’s argument – that the sperm donor was not a parent by virtue of section 60H(1)(d) of the FL Act, 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 of the donor in section 60H(1)(d) does not apply because none of the section 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 section 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 FL Act (because the mother was single) – then the provision in the SoC Act that conclusively presumes the sperm donor not to be a parent does not apply because it is inconsistent with the FL Act. 

Section 109 of the Australian 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.

Masson v Parsons [2019] HCA 21

The case of Masson v Parsons [2019] HCA 21 involved Ms Parsons, a woman who, at the time of conception, was in a same-sex relationship that was not a de facto relationship. Mr Masson was the child’s biological father and was listed on the child’s birth certificate as the father. He played an active role in the child’s life and was called ‘Daddy’ by the child.

At first instance, Mr Masson was considered to be a legal parent of the child; the trial judge made orders providing for the child to spend extensive time with Mr Masson. Then Ms Parsons sought to relocate to New Zealand with the child and her partner. As a consequence of the orders made by the trial judge, Ms Parsons was not permitted to relocate to New Zealand with the child.

On appeal, the Full Court of the Family Court held that as the Family Court exercised federal jurisdiction, section 79 of the Judiciary Act 1903 (Cth) (‘Judiciary Act’) must be applied. Section 79 of the Judiciary Act provides that state law is binding on courts exercising federal jurisdiction, unless a Commonwealth Act ‘otherwise provides’.

In this case, the relevant state Act was the Status of Children Act 1996 (NSW) (‘SoC Act NSW’). Section 14 of the SoC Act NSW contains an irrebuttable presumption that where a child is born as a consequence of a sperm donation and the sperm donor is not the mother’s husband, then the sperm donor is not a legal parent of the child. There is a similar provision in the Victorian SoC Act.

The Full Court of the Family Court held that because section 60H of the FL Act addresses parentage of children born via artificial conception procedures and does not contain any requirement that sperm donors be recognised as parents, the FL Act is not inconsistent with the SoC Act NSW and leaves room for the SoC Act NSW to apply.

Accordingly, the Full Court of the Family Court held that since the Family Court exercised federal jurisdiction by virtue of section 79 of the Judiciary Act, the SoC Act NSW represented the law. The result was that Mr Masson was found not to be a legal parent of the child, regardless of the parties’ intentions at the time of conception and despite Mr Masson’s involvement in the child’s life.

On appeal to the High Court, the decision of the Full Court of the Family Court was overturned. The High Court held that the relevant provisions of the SoC Act NSW could not be applied because the FL Act has ‘otherwise provided’. This is because the FL Act is ‘complete upon its face’, leaving no room for the SoC Act NSW to operate.

The effect of section 60H of the FL Act is to expand rather than to restrict the range of persons who may qualify as a parent of a child born via an artificial conception procedure. Where section 60H does not expand the meaning of ‘parent’, the natural and ordinary meaning applies, as it does throughout the rest of the FL Act where the meaning of the term is not specifically departed from. Even though section 60H does not specifically mandate that sperm donors be recognised as parents, it does not exclude them from being recognised as such where they fall within the ordinary meaning of ‘parent’.

The High Court held that the ordinary meaning of the term ‘parent’ is:

… a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of ‘parent’ and the relevant circumstances of the case at hand.

In this case, Mr Masson was found to be a parent within the ordinary meaning of the term. Mr Masson provided his semen, and did so on the understanding that he would be the child’s parent. He was registered as the child’s parent on the birth certificate, had provided financial support, had been involved in the child’s care since birth and is regarded by the child and acquaintances as being the child’s father.

It remains to be seen how this case will be applied in subsequent matters, including where the person who provided the sperm is not listed on the birth certificate.

McAuley v Salberg [2020] FCCA 1538

The case of McAuley v Salberg [2020] FCCA 1538 involved Ms McAuley (the applicant) who, at the time of artificial conception, was in a committed same-sex relationship with Ms Salberg (the first respondent). Mr Mason was the sperm donor and biological father and was registered as a parent on the child’s birth certificate along with the applicant. The applicant sought, among other things, a declaration that Mr Mason is a parent of the child. This application was fully supported by Mr Mason.

The court examined section 69R of the FL Act, which establishes the presumption that a person registered as a parent of a child on the child’s birth certificate is considered to be a parent of the child. 

Yet under section 60H of the FL Act, if the court finds that the applicant and first respondent were in a de facto relationship at the relevant time, and the child was conceived through artificial conception, then the applicant and first respondent are the parents of the child for the purposes of the FL Act, despite what is noted on the child’s birth certificate.

There was clearly artificial conception in this matter, and the court was satisfied that the applicant and first respondent were in a de facto relationship at the relevant time. Therefore, the court found that the applicant and first respondent are the child’s parents.

The applicant was also granted sole parental responsibility in this case. No parenting orders for time with the child were sought by Mr Mason. 

Re Tinashe [2021] FamCA 41

The case of Re Tinashe [2021] FamCA 41 dealt with the question of whether ‘mere sperm donors’ can be considered to be parents. In this matter, the child (X) was conceived using IVF with an anonymous sperm donor. When considering parenting orders following the death of X’s mother, Justice Gill considered whether X had any parents apart from their mother. The ordinary meaning of the term ‘parent’, as discussed in Masson v Parsons, was considered, but it was found that this did not cover an anonymous sperm donor with no involvement in a child’s life. Therefore, in this case, the sperm donor was not classified as a parent.

Conclusions from the case law

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

For lesbian couples using a known donor – provided they were in a domestic relationship at the time of conception and the non-birth mother consented to the conception procedure – they are both presumed to be a parent of the child and a declaration of parentage is not available to the sperm donor.

There will be no inconsistency between Commonwealth and state laws and, accordingly, the SoC Act 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.

It can also be derived from the case law that although there is scope for sperm donors to be considered parents, the circumstances in which this will occur are quite rare.