DOC

CHAPTER 8 FAMILY LAW

By Norma Hayes,2014-05-07 19:04
6 views 0
CHAPTER 8 FAMILY LAW

    Chapter 12 Family Law

12. Family Law

    12. Family law ............................................................................................. 1

    12.1 What is this chapter about? ............................................................... 2

12.2 Why can’t same-sex couples access the federal Family Court for

    property settlements? ................................................................................... 3 12.2.1 Some states and territories have referred power to the federal

    government ............................................................................................... 3 12.2.2 The federal government will not accept referrals regarding

    same-sex couples ..................................................................................... 4

    12.3 How are same-sex couples worse off in property settlements? ......... 4 12.3.1 The federal property division regime has many benefits ............ 4 12.3.2 Same-sex couples cannot access these benefits ....................... 5

    12.4 Do both same-sex parents have access to child support?................. 5 12.4.1 Only a birth or adoptive parent is a ‘parent’ for child support purposes ................................................................................................... 6 12.4.2 A lesbian co-mother and gay co-father may be an ‘eligible carer’

     6

    12.4.3 Only a ‘parent’ is liable for child support ..................................... 7

12.5 How is parental responsibility divided between same-sex parents on

    separation?................................................................................................... 8 12.5.1 Only a birth or adoptive parent is a ‘parent’ for family law

    purposes ................................................................................................... 8 12.5.2 Spending time with a ‘parent’ is a primary consideration on

    separation ................................................................................................. 8 12.5.3 The narrow definition of ‘parent’ creates uncertainty for a child

    on separation ............................................................................................ 9

12.6 Does family law legislation regarding separation breach human rights?

     9

12.7 How should family law legislation be amended to avoid future

    breaches?................................................................................................... 11 12.7.1 Narrow definitions of ‘parent’ are the main problem in child

    support and family law on separation ..................................................... 11 12.7.2 The solution is to amend the definitions and recognise both

    same-sex parents ................................................................................... 11 12.7.3 A list of legislation to be amended ............................................ 12 12.7.4 New legislation should accept constitutional referrals regarding

    property division for separating same-sex couples ................................. 12

     1

    Chapter 12 Family Law

12.1 What is this chapter about?

    This chapter addresses the problems facing a same-sex couple on the breakdown of their relationship.

    The issue of divorce never arises for same-sex couples, since they cannot legally marry. However, a same-sex couple, like an opposite-sex de facto couple, may need the assistance of a court to resolve property and child-related issues if their relationship breaks down.

    Married, opposite-sex de facto and same-sex couples can all access the federal Family Court to resolve child-related matters. But some same-sex couples will be at a disadvantage when it comes to the determination of parental responsibility and child support after a relationship breaks down.

    Only married couples can access the federal Family Court to determine how to divide the property of a relationship. Same-sex and opposite-sex de facto couples must currently go to the relevant state or territory jurisdictions to decide property-related matters. Accessing two different jurisdictions creates additional costs. In addition, state and territory jurisdictions cannot consider the same range of assets when making a property settlement. Thus de facto couples may end up with less comprehensive property settlements than those available to married couples.

    New legislation proposed by the federal government should allow opposite-sex de facto couples to access the federal Family Court for property matters. However the government has indicated that this new legislation will not assist same-sex couples. If this occurs there will be discrimination against same-sex couples as compared to opposite-sex de facto couples.

    Further, discrimination regarding the care of children after relationship breakdown arises because the lesbian co-mother and gay co-father of a child is not considered a ‘parent’ for the purposes of determining parental responsibility or child support liability.

    This chapter outlines in more detail how family law discriminates against same-sex couples when a relationship breaks down. The chapter examines the human rights breaches caused by this discrimination and recommends changes to the law in order to address those breaches.

Specifically, this chapter addresses the following questions:

    ? Why can’t same-sex couples access the federal Family Court for

    property settlements?

    ? How are same-sex couples worse off in property settlements?

    ? Do both same-sex parents have access to child support?

    ? How is parental responsibility divided between same-sex parents on

    separation?

     2

    Chapter 12 Family Law

    ? Does family law legislation regarding separation breach human rights?

    ? How should family law legislation be amended to avoid future breaches?

For a discussion about the recognition of same-sex relationships, see Chapter

    4 on Recognising Relationships. For a discussion about the recognition of the

    relationship of same-sex parents and their children, see Chapter 5 on

    Recognising Children.

12.2 Why can’t same-sex couples access the federal Family

    Court for property settlements?

If a married couple separates, they can go to the federal Family Court of

    Australia to dissolve their marriage and resolve all their property and child-

    related issues. However, for constitutional reasons, de facto couples are

    denied access to the federal Family Court for property matters.

The effect of this constitutional anomaly is that, other than in Western

    Australia, a separating de facto couple with children must initiate proceedings 1in two different jurisdictions if their relationship breaks down. They must go to

    the relevant state or territory court to resolve property issues, and the federal

    Family Court to resolve child-related issues.

12.2.1 Some states and territories have referred power to the

    federal government

Over the past few years NSW, Queensland, Victoria and the Northern

    Territory have agreed to refer their constitutional power regarding property 2division to the federal government.

In other words those jurisdictions will give up their power to deal with property

    division for de facto couples so that all separating couples can have their

    property and child-related matters dealt with in one court. It is envisaged that

    as a result of these referrals separating de facto couples will have the same

    access to the federal Family Court as separating married couples.

So far, all of the constitutional referrals signed by the state and territory

    governments have specified that de facto same-sex relationships are to be 3included.

     3

    Chapter 12 Family Law

12.2.2 The federal government will not accept referrals

    regarding same-sex couples

The federal government has indicated that while it intends to accept the

    constitutional referral regarding opposite-sex de facto couples, it does not 4intend to accept the referral of power regarding same-sex couples.

12.3 How are same-sex couples worse off in property

    settlements?

At the moment, the federal Family Court can only deal with property

    settlements between two ‘spouses’. A ‘spouse’ is defined as a party to a 5marriage.

If the federal government accepts constitutional referrals of state power over

    property division for opposite-sex couples, separating same-sex de facto

    couples will be the only group of people denied access to the federal property

    division regime.

Instead, same-sex couples will have to use the state and territory property 6 division regimes, which all include same-sex couples within their jurisdiction.

12.3.1 The federal property division regime has many benefits

The federal property division regime has the following advantages over the

    state regimes. The federal property division regime:

    ? covers a larger pool of the couple’s shared assets, including 7superannuation assets

    ? tends to attribute a higher value to non-financial homemaking 8contributions

    ? has broader powers to make property orders or issue injunctions

    against third parties, including creditors and family companies which 9are not in the legal control of one partner

    ? includes broad consideration of future needs as well as past 10contributions when making property adjustments

    ? uses informal dispute resolution systems which are cheaper and faster 11than the state regimes

    ? contains provision for periodic or lump sum spousal maintenance

    payments where appropriate (such as in cases where one party has a

    very limited earning capacity or where a party has extensive financial 12resources but few assets available for division).

In short, the federal property division regime covers a larger pool of the

    couple’s shared assets, can divide such assets with a far greater degree of

     4

    Chapter 12 Family Law

flexibility, and takes into account a wider range of factors and circumstances

    of the parties during and after the relationship in making any adjustments.

12.3.2 Same-sex couples cannot access these benefits

Since it appears that same-sex couples will continue to be excluded from

    accessing the federal Family Court, they will remain at a disadvantage 13regarding property settlement. Same-sex couples with children will also face the additional cost and inconvenience of having to access two

    jurisdictions.

The Equal Opportunity Commission of Victoria describes the additional

    hurdles faced by same-sex couples as follows:

    Once the Commonwealth legislates to act upon the referral of de facto

    spouse property matters pursuant to the Commonwealth Powers (De Facto

    Relationships) Act 2004 under the Family Law Act heterosexual de facto

    couples will be able to access the convenience of one jurisdiction to resolve

    their property and child matters on the event of relationship breakdown;

    significantly this will include access to primary dispute resolution procedures.

    This will result in a significant advantage to heterosexual de facto couples and

    the exclusion of same-sex de facto couples will cause significant detriment to 14them and their children.

12.4 Do both same-sex parents have access to child support?

Generally, when a couple with children separates, one member of the couple

    will have primary responsibility for caring for the child and the other member

    of the couple will provide financial assistance to help carry out that

    responsibility (child support).

The Child Support (Assessment) Act 1989 (Cth) (Child Support (Assessment)

    Act) provides a formula for assessing the amount of child support payable by

    a ‘parent’.

Chapter 5 on Recognising Children notes that when children are born to a

    lesbian or gay couple their parents may include a birth mother, lesbian co-15mother, birth father or gay co-father.

The narrow definition of ‘parent’ in the Child Support (Assessment) Act means

    that a birth mother or birth father cannot pursue child support from the lesbian

    co-mother or gay co-father of a child even if the co-parent had a parenting order to look after the child.

     5

    Chapter 12 Family Law

12.4.1 Only a birth or adoptive parent is a ‘parent’ for child

    support purposes

    A ‘parent’ is defined under the Child Support (Assessment) Act as follows:

    parent means:

    (a) when used in relation to a child who has been adopted--an adoptive

    parent of the child; and

    (b) when used in relation to a child born because of the carrying out of an

    artificial conception procedure--a person who is a parent of the child under 16section 60H of the Family Law Act 1975.

    Section 60H of the Family Law Act 1975 (Cth) (Family Law Act) makes presumptions about who are the ‘parents’ of a child conceived through

    assisted reproductive technology (an ART child).

As discussed further in Chapter 5 on Recognising Children, section 60H of the

    Family Law Act presumes that the woman giving birth to the child (the birth

    mother) is always a ‘parent’ of an ART child, irrespective of whether it is her

    egg involved in conception.

Section 60H of the Family Law Act also presumes that the male partner of the

    birth mother (the birth father) will be the parent of the ART child if he consents

    to the process, irrespective of whether it is his sperm involved in conception.

However, the Family Law Act does not presume that the female partner of the

    birth mother (lesbian co-mother) is a parent of the ART child if she consents

    to the process.

Thus, the lesbian co-mother of an ART child will not be a ‘parent’ for the

    purposes of child support, even though the birth father of an ART child born to

    an opposite-sex couple will be a ‘parent’.

Further, the male partner of a birth father (a gay co-father), and any other

    person who takes on a parenting role (social parent), will also be excluded

    from the definition of ‘parent’. This is the case even if the social parent had a

    parenting order in respect of the child before the couple separated. Chapter 5

    on Recognising Children explains why this may be important for many same-

    sex couples caring for children.

12.4.2 A lesbian co-mother and gay co-father may be an

    ‘eligible carer’

    A person will be an ‘eligible carer’ if he or she is:

    (a) a person who is the sole or principal provider of ongoing daily care for the

    child

    (b) a person who has major care of the child

     6

    Chapter 12 Family Law

    (c) a person who shares ongoing daily care of the child substantially equally

    with another person

    or

    17(d) a person who has substantial care of the child.

Therefore, a person in a same-sex couple need not be a ‘parent’ to qualify as

    an ‘eligible carer’. This gives scope for any of the birth mother, birth father,

    lesbian co-mother, gay co-father(s) or social parent(s) with a parenting order

    to be an ‘eligible carer’.

    However, a ‘parent’ or ‘legal guardian’ (a person with a parenting order) has 18some control over who else may qualify as an ‘eligible carer’. People other than a ‘parent’ or ‘legal guardian’ can only be an ‘eligible carer’ if:

    ? the child is in the person’s care with the consent of the parent or legal 19guardian

    or

    ? the child is in the care of the person without the consent of the parent

    or legal guardian, and the Family Court Registrar believes that it would

    be unreasonable for the child to be in the care of the parent or legal 20guardian.

12.4.3 Only a ‘parent’ is liable for child support

     21To pursue child support a person must be an ‘eligible carer’. But the only person liable to pay child support is a ‘parent’. Under the Child Support

    (Assessment) Act, there can only be one ‘parent’ in a same-sex couple.

Therefore, if a same-sex couple separates and the child ends up with the

    lesbian co-mother or gay co-father with a parenting order (‘eligible carer’), that

    eligible carer can pursue child support from the birth mother or birth father

    (‘parent’).

    But if the child ends up with a birth mother or birth father (‘parent’), that parent 22cannot pursue the lesbian co-mother or gay co-father for child support.

A parent of a lesbian mother told the Inquiry that:

    If separation occurs, my daughter could be left to totally supporting herself

    and her daughter…Ironically even fathers who don’t pay maintenance are still 23recognised as parents.

A mother told the Inquiry:

    I have two daughters one is four months old and one is two years old. The

    four month is my biological daughter and the two year old is the biological

    daughter of my partner. ACT law allows us both to be considered parents. But

    this does not help us with issues covered by Commonwealth law, for example 24child support on separation.

     7

    Chapter 12 Family Law

12.5 How is parental responsibility divided between same-sex

    parents on separation?

The division of parental responsibility after separation can have flow-on

    effects for the purposes of child support and other financial benefits

    throughout a child’s life.

    Some submissions to the Inquiry expressed concern about how parental 25responsibility is divided between same-sex parents on separation. Changes to the Family Law Act on 1 July 2006 enhanced the rights of the people 26recognised as a ‘parent’ under that legislation. This may disadvantage the lesbian co-mother and gay co-father who may have been caring for a child

    since birth.

12.5.1 Only a birth or adoptive parent is a ‘parent’ for family

    law purposes

     27The Family Law Act defines a parent to include an adoptive parent. The definition assumes that a birth mother and birth father will be a parent. This

    will include the male partner (birth father) of a woman having an ART child, 28but exclude the female partner (lesbian co-mother).

The definition of parent will also exclude the gay co-father and any other

    same-sex parent who has a parenting order in his or her favour. A person with

    a parenting order will be one of the ‘other people significant to [the child’s] 29care, welfare and development’, but not a ‘parent’.

12.5.2 Spending time with a ‘parent’ is a primary

    consideration on separation

When deciding custody arrangements on separation, the Family Court must

    focus on a child’s best interests. Under the new amendments, the child’s best 30interests are divided into ‘primary’ and ‘additional’ considerations.

The Family Court must consider the ‘benefit to the child of having a 31meaningful relationship with both of the child’s parents as a primary factor.

The relationship between a child and any other person, including a lesbian co-

    mother and gay co-father, will be an ‘additional’ consideration for the Family 32Court, but not a primary consideration.

Therefore, the lesbian co-mother and gay co-father will be at a disadvantage

    when trying to gain custody of a child after separation even if he or she has a parenting order in favour of the child, and has otherwise cared for the child

    since birth.

     8

    Chapter 12 Family Law

    12.5.3 The narrow definition of ‘parent’ creates uncertainty for

    a child on separation

The Inquiry heard from a number of people who are concerned that the

    children of a same-sex couple are not adequately protected following

    separation.

The Action Reform Change Queensland (ARCQ) and Queensland AIDS

    Council comment:

    [We] are aware of some same sex couples for whom ongoing contact with

    children is difficult for the non-biological partner following a break down of the

    relationship. This is exacerbated by the lack of protection at family law and in

    federal legislation. While the [HREOC] research paper acknowledges that

    some people may be recognised if they have a parenting order through the

    Family Court, it is understood that this is an expensive way to gain 33parenthood status and in practical terms may not be widely used.

One parent told the Inquiry of the uncertainty that can be created when a

    biological parent dies:

    In a same-sex relationship where there’s children concerned, if the biological

    mother does pass away, the child does not automatically get to stay with the

    non-biological parent…If one member of the biological mother’s family comes

    forth to take that child out of that house, that child is gone. You would have to

    fight it in the Family Court it is not a right of ours for the child to stay where it 34has grown up.

12.6 Does family law legislation regarding separation breach

    human rights?

This chapter sets out the difficulties facing same-sex families on separation.

The first problem is that same-sex (and opposite-sex) de facto couples cannot

    access the federal Family Court property division regime, which has

    significant advantages over state property regimes. New legislation proposed

    by the federal government would allow opposite-sex de facto couples to

    access the federal regime but not same-sex couples.

If this new legislation comes into force in its intended form, it will breach the

    right of same-sex couples to non-discrimination under article 26 of the

    International Covenant on Civil and Political Rights (ICCPR).

The second problem is that a narrow definition of ‘parent’ in the Family Law

    Act and the Child Support (Assessment) Act puts some same-sex couples at

    a disadvantage when it comes to the determination of parental responsibility

    and liability for child support. In particular, a birth mother or birth father is

    unable to pursue child support from a lesbian co-mother or gay co-father.

     9

    Chapter 12 Family Law

Thus, the main finding of this chapter is that the exclusionary definition of

    ‘parent’ in the Child Support (Assessment) Act and the Family Law Act

    breaches the right to non-discrimination under article 26 of the ICCPR.

This discrimination against same-sex parents may also result in a breach of

    Australia’s obligations under the Convention on the Rights of the Child (CRC).

    This is because:

    ? the best interests of a child being raised in a same-sex family do not

    appear to be a primary consideration if they were, a same-sex parent

    could pursue child support from his or her former partner and the

    child’s relationship with both his or her same-sex parents would be a

    ‘primary’ consideration in determining custody arrangements (CRC,

    articles 2(1), 3(1))

    ? the narrow definition of parent in the Child Support (Assessment) Act

    and the Family Law Act does not recognise and support the common

    responsibilities of both same-sex parents to fulfil child-rearing

    responsibilities (CRC, article 18(1), article 2(1))

    ? a same-sex parent who is unable to pursue child support from his or

    her former partner may be at a financial disadvantage when compared

    to an opposite-sex parent in the same position. This amounts to

    discrimination against the child on the basis of the status of his or her

    parents (CRC, article 2(2))

    ? the narrow definition of ‘parent’ in the Family Law Act creates

    uncertainty for the child of a same-sex couple when their parents

    separate. This may amount to discrimination against the child on the

    basis of the status of his or her parents (CRC, article 2(2)).

There may also be a breach of the right to protection of the family without

    discrimination under the ICCPR (articles 23(1), 2(1)) and the International Covenant on Economic, Social and Cultural Rights (articles 10, 2(2)).

    Australia’s human rights obligations to same-sex couples and families are set out in more detail in Chapter 3 on Human Rights Protections.

     10

Report this document

For any questions or suggestions please email
cust-service@docsford.com