The Age - "Family Court should rule on gay disputes: Kirby" by Fergus Shiel

High Court judge Michael Kirby has declared his support for the Family Court to deal with property disputes between gay couples.

He told an international family law conference in Melbourne yesterday that, in the unlikely event that he were to break up with his male partner of 33 years, he would hope to be treated equally before the law.

"But if it were to happen, it would seem more seemly to me, it would seem more equal to other citizens, that it should be dealt with in a Family Court with other people whose relationships have broken down rather than in an equity court," he said.

The Chief Justice of the Family Court, Alastair Nicholson, later said it would be "a very sensible idea" for the Family Court to have jurisdiction over both gay and heterosexual couples.

Federal Attorney-General Daryl Williams has clashed with his Victorian counterpart, Rob Hulls, because the Commonwealth wants to extend family court powers over property settlements from married couples to separating de factos. But the extension would exclude gay couples.

Justice Kirby said it was time we all faced up to the reality that there were many sexual minorities demanding equality under family law.

At present, separating married couples have custody and property issues determined in the Family Court.

But when de facto couples separate, the Family Court deals with custody matters and property settlements are decided in state Supreme Courts, with the exception of Western Australia, which has its own Family Court that deals with same sex breakdowns.

The Federal Government wants to take over state and territory powers for property settlements for heterosexual de facto couples in order to save themtime and legal expense.

Mr Hulls says Victoria is willing to transfer powers to the Commonwealth but the move should cover all de facto couples, regardless of sexuality, otherwise it would be homophobic.

In his address yesterday to the 16th World Congress of the International Association of Youth and Family Judges and Magistrates, Justice Kirby said the community needed to consider questions of sexuality before the law.

"It is important, I think, that people like me should tell people like you these things so that you realise that the issue of sexuality is not something odd and peculiar of tiny minorities," he said.

"It is something that reaches in the highest constitutional offices of countries. It always has, but in the past it has been subject to the pressure 'Don't ask. Don't tell.'

"Thanks in part to genetic information . . . and in part to the work of Alfred Kinsey and others like him, that edict is in its last days - at least in Western countries - and it is important that all of us should face up to these scientific realities."

Mr Williams responded: "The government believes that regulating the property settlements of same sex couples is properly the province of the state and territories."

[Link: Original Article"

Read More

Sydney Morning Herald - "Same-sex couples enlisted to solve foster-parent crisis" by Erin O'Dwyer

Gay and lesbian couples are being urged to foster disadvantaged children in a bid to address the dire shortage of foster families across the state.

Welfare agencies have approved dozens of gay men and lesbians as foster carers, in stark contrast to state laws that prohibit same-sex couples from adopting children.

NSW Foster Care Association president Mary Jane Beach said same-sex couples were able to provide emotionally stable and financially secure home environments, at a time when fewer traditional families were willing to take on foster children.

"We see lots of gay and lesbian carers who are absolutely outstanding," she said.

The foster carer shortage is so critical that last month the Department of Community Services (DOCS) launched its largest recruitment campaign, targeting single women and people in their 20s. Fortnightly foster-care allowances were also increased by $21 to $721.

Each day in NSW, six children are placed in emergency care and more than 10,000 young people across the state are unable to live at home. Yet there are only 4000 registered foster carers.
AdvertisementAdvertisement

DOCS and other welfare agencies are yet to begin actively recruiting same-sex couples and there are no figures available to show how many gay men and lesbians are approved carers. But gay lobby groups say the community is an untapped market and are calling on welfare agencies to promote more gay fostering.

Gay and Lesbian Rights Lobby convener David Scamell said foster parenting was a viable option for same-sex couples who wanted to have children but could not because government policy explicitly banned same-sex couples from adopting children, and access to IVF was not universally available to lesbians.

The Foster Care Association has backed the call. Ms Beach said more than a dozen same-sex foster parents were members of the association, including one lesbian couple who had fostered for more than 20 years.

"It doesn't matter what gender they are," Ms Beach said. "It's the level of care they are able to provide and their ability to meet the needs of the children, whether they are single, gay or lesbian, or married."

Publisher Silke Bader and her partner of seven years, banker Tanya Sale, received two foster children just nine months after they first registered with DOCS and welfare agency Barnardo's.

Ms Bader, who publishes national lesbian magazine LOTL, said the couple became foster parents because they could not adopt and did not want to use donor sperm.

Their children - a brother and sister aged four and six - enjoy a stable home environment. They have lived together as a family in Coogee for two years, while the children's six siblings have been moved three times.

Ms Bader said she and her partner also had a very good relationship with the children's natural parents.

A DOCS spokeswoman said anyone who expressed an interest in fostering would be considered, regardless of their sexuality. "The paramount consideration is always the best interests of the child," she said.

[Link: Original Article]

Read More

A Community Law Reform Document - "And then... the brides changed nappies" by Jenni Millbank

Lesbian mothers, gay fathers and the legal recognition of our relationships with the children we raise

A Community Law Reform Document - 1st edition
Nappies is for consultation

In 1993 the GLRL developed relationship recognition options in The Bride Wore Pink. After a process of community consultation, a second edition of the Bride was developed in 1994. Bride became the basis for lobbying for law reform over 5 years until laws recognising gay and lesbian relationships were passed in NSW in 1999. This second stage, Nappies is to take the law reform process further, from partnerships to parenting.

This discussion paper outlines some of the issues in the laws that regulate and (mostly do not) recognise our families. We suggest a series of possibilities for change and recommend those we think are the best.

We are informed in this paper by existing social science research on gay and lesbian family forms as well as by the GLRL 2001 consultation on parenting issues. Our starting point is that parenting issues are more of an issue generally for women than men, as lesbians are more likely to be parents than gay men are, and more likely to be the full time caregivers to children when they are parents. Acknowledging women’s primacy in parenting issues does not mean we devalue men’s parenting relationships.

Our purpose is to find models that assist all our families as they exist now, it is not to express any preference for one kind of family – one parent or two, gay dads involved or not involved - over any other.

We expect that our suggestions will generate a range of views. This document is only a draft, it is not final. We need to hear from you about whether you think what we propose is helpful. You can respond in writing, by email, or at one of the community consultations through 2002/3 – see the details for submissions and consultations at the end of this paper.

We hope to develop a broad consensus from listening to lesbian and gay families about what law reform is needed. If there is a consensus we will write a final report and use it as a base for our future lobbying efforts, as we did with Bride. If there is no real agreement within our communities, we will issue a final report acknowledging where those divisions lie.

[Link: Full Report]

Read More

The Age - "Battle for boy ends in double tragedy" by Julie Szego

The lesbian mother at the centre of a bitter Family Court battle with a gay sperm donor was found dead in her Melbourne home on Thursday, along with her two-year old son, in an apparent murder-suicide.

The mother, 40, lived with her lesbian co-parent, who had fought alongside her earlier this year to restrict the father's contact with the child.

In April the donor father won the right to have regular contact visits with his son after a Family Court judge ruled that it was in the child's best interests.

Since the trial, the co-parent had played the role of intermediary in facilitating the visits. It is believed those contact arrangements had been progressing smoothly and the father was enjoying a healthy relationship with the toddler.

It is also believed the birth mother had received psychiatric treatment since the court case.

A police spokeswoman said last night the mother and child's names could not be released but confirmed the matter was being treated as a murder-suicide.

Detectives are preparing a report for the coroner on the incident and an autopsy is expected later.

The birth mother and co-parent had brought proceedings to restrict contact between the sperm donor father and the child to twice a year. The father sought regular contact.

The couple and the father gave conflicting evidence on understandings they had reached before the child's birth. Initially, the child's birth was concealed from the father. The biological mother insisted that she, her lesbian partner and son were a complete family unit.

At one stage, she said her son emitted a strong male odour after contact with his father.

Justice Paul Guest ordered fortnightly four-hour visits between father and child, with the length of the visits increasing incrementally to include overnight stays, alternate weekends and half of school holidays by September, 2004.

[Link: Original Article]

Read More

The Age - "Online ads prompt surrogacy ban call" by Richard Baker

A child welfare activist yesterday called for a national ban on surrogacy after revelations that six Australians were advertising for surrogate mothers on an American website.

The site, www.surromomsonline.com, also contains two classified ads placed by Australian women offering to be egg donors.

Those seeking surrogate mothers include a 42-year-old gay man, a father who sees his two children only twice a fortnight, and an infertile Melbourne couple.

Each state has different laws on surrogacy. Only the Australian Capital Territory allows non-commercial surrogacy.

Retired law lecturer and child welfare activist Neville Turner said a nationwide ban on surrogacy was needed to protect children. "These people are desperate, perhaps, so it's up to the law to prevent desperate people from producing children who are going to be emotionally disturbed and bewildered," he said.

Mr Turner said advertising for a surrogate mother was illegal in Victoria under the state's Infertility Treatment Act.

Premier Steve Bracks said yesterday that a Werribee woman who had advertised herself as an egg donor on the American website was breaking Victorian law and might face prosecution. He called on the woman, who has already helped a Melbourne couple reach the early stages of pregnancy, to formally register her services as a donor at an IVF clinic.

Mr Bracks said the case highlighted the need for national laws for the Internet in Australia.

The gay man seeking a surrogate mother said he had placed his ad on the US website last week and had received eight responses, including one from an 18-year-old.

He said his dream of fatherhood included the long-term involvement of the surrogate mother. "I want my child to know why they came into the world the way they did, and who their surrogate mother is," he said.

The first legal Australian surrogacy resulted in the birth of a baby girl in Canberra in 1996.

- with AAP

[Link: Original Article]

Read More

Australian Parliament - "Research Note: Children of Lesbian and Single Women Parents" by Maurice Rickard

Research Note no. 41 2001-02
Social Policy Group

This Research Note summarises the existing empirical data on the psychological and social development of children raised in single woman and lesbian parented families.(1)

A number of recent events has served to focus public attention on single woman and lesbian parenting.(2) Although these have related to unmarried (or non de facto) women seeking medically assisted reproduction, the broader issues of fatherless parenting and the child's interests have been prominent in the accompanying debate.
Background

Single women and women in a lesbian relationship can become parents through sexual intercourse or through self- or assisted insemination. Women may also gain custody of their child(ren) after separation or divorce, and in some cases may then co-parent with a female partner.

Adoption laws in all Australian States/Territories favour married couples.(3) Also, legislation in some States purports to confine provision of medically assisted reproductive treatments to people who are married or living in heterosexual de facto relationships. Surrogacy arrangements are not legally enforceable in Australia.

In 2000, 18.6 per cent of families with children under fifteen had single women as parents (403 992).(4) The 1996 Australian Census indicates there were also 8304 female same-sex couples. Reported analysis of ABS data indicated that 1483 (18 per cent) of these were couples with children.(5) Recent surveys also suggest that the rate at which lesbian couples are having children is increasing (14 per cent of respondents in 1993, 19 per cent in 1995, 22 per cent in 1999).(6)

There is little reliable data on how many single and lesbian women access assisted reproduction in Australia. However, an informal survey of accredited fertility centres conducted by the author indicates approximately 190 women in the last 12 months.
The Developmental Questions

A prominent claim in the current debate is that it is in the interests of the child and, moreover, a right of a child, to have the opportunity of the care and affection of a father (as well as a mother).(7) Underlying this is the assumption that a child's psychological and social development is likely to be adversely affected by the absence of (good) father parenting, and by parenting by lesbian women.

In particular, some might hold that children parented by single women or lesbian-couples are significantly more likely to:

* become homosexual
* have an atypical gender identity/orientation
* have lower self-esteem from the social stigma of having lesbian parents
* experience behavioural and social maladjustment (in the case of children of single-woman parents)

Are these assumed effects actual outcomes of lesbian or single woman parenting? Should all such putative outcomes be considered adverse?
The Developmental Evidence

There is a body of research evidence, spanning over 20 years, on the developmental outcomes of children of single woman and lesbian parents. This includes longitudinal studies which track the development of children over a number of years into adolescence and adulthood, as well as cross-sectional studies that comparatively investigate a child's development at a single time. Results are generally consistent across these various studies, for both single woman parent studies and lesbian couple parent studies.

Single motherhood appears to be a strong risk factor in negative social, behavioural and emotional outcomes for children. Some argue that this is due specifically to the absence of a male parent.(8) However, there is strong evidence to suggest that these negative outcomes are the result of the age, educational, economic and social isolation disadvantages that often accompany single motherhood.(9)

With regard to lesbian parenting, studies tracking the long-term progress of children of lesbian mothers have revealed no significant differences between them and children of heterosexual mothers along any of the following key developmental dimensions:

* Gender development: children of lesbian parents are no more likely to have confused or unconventional gender identity or behaviour, or to have gay or lesbian sexual orientation.
* Self-esteem and emotional wellbeing: the behaviour, intelligence, psychiatric and emotional condition of children of lesbian parents is within the normal range.
* Social development: children of lesbian parents are within the normal range of confidence, and have positive peer relationships. They are no more likely to be teased or bullied than children of heterosexual mothers.

These longitudinal studies report on children of lesbian mothers separated from previous heterosexual relationships. There are fewer studies on children raised from infancy in lesbian parent families. Such studies nevertheless corroborate the findings of the longitudinal studies.

Some studies, however, do report that some children of lesbian parents exhibit some of the following developmental differences:

* are more willing to consider homosexuality as an option (even if not pursue it)
* are characterised as more affectionate and responsive, and report a greater sense of well-being and contentment about themselves
* fear stigmatisation, have a more negative reaction to stress, and remember teasing more
* perceive themselves as less intellectually and physically competent than children from father-parent families

Overall, though, the existing evidence indicates that the sexual orientation of parents does not appear to be a determinant of the success of a child's development. Nor does the presence of a father appear crucial for normal development. The available evidence, therefore, does not support the developmental assumptions mentioned earlier.

Strong as the existing evidence on lesbian parenting is, it is nonetheless based on certain types of study, which inevitably involve certain types of limitation. For example, subjects were generally English-speaking, middle-class, and voluntary participants. Findings were also generally based on participants' own verbal reports, and were conducted in either the USA or UK. These factors may have influenced findings, but it is not clear that they would have done so extensively.
Quality Families, Quality Development

None of the evidence above serves to denigrate the contribution of good father parenting. It does indicate, though, that it is the good parenting rather than the father parenting that is relevant.

Developmental research consistently reports that it is the quality of family processes, rather than the nature of family structure (e.g. single, same-sex, or heterosexual couple parents) that is most important to the adjustment of the child.

The issue of what counts as appropriate development is also important. It is regrettably true that those with non-conventional gender or sexual orientations are likely to face adversity in their lives. But the assumption that those orientations in themselves should count as adverse or inappropriate developmental outcomes is entirely questionable.

In this matter, not only is some of the public debate open to criticism, but also some of the developmental literature.

1. A large number of research studies is summarised here. As an example, see S. Golombok et al., 'Children Raised in Fatherless Families from Infancy', Journal of Child Psychology & Psychiatry, vol. 38, no. 7, 1997, pp. 78391; R. Chan et al., 'Psychosocial Adjustment among Children Conceived via Donor Insemination by Lesbian and Heterosexual Mothers', Child Development, vol. 69, no. 2, 1998, pp. 44357; B. Fitzgerald, 'Children of Lesbian and Gay Parents', Marriage & Family Review, vol. 29, no. 1, 1999, pp. 5775.
2. For example, McBain v Victoria (2000) 177 ALR 32; Sex Discrimination Amendment Bill (No 1) 2000; Re McBain; Ex parte Australian Catholic Bishops Conference; Re McBain; Ex Part Attor [2002] HCA 16 (18 April 2002).
3. Some States and Territories also allow adoption by heterosexual de facto couples. Single people generally can adopt only in 'special' or 'exceptional' circumstances. Recent legislation in Western Australia will allow gay and lesbian couples to adopt: Acts Amendment (Lesbian and Gay Law Reform) Act 2002 WA.
4. Australian Bureau of Statistics, Australian Social Trends 2001.
5. Reported in K. Mikhailovich, S. Martin and S. Lawton, 'Lesbian and Gay Parents: Their Experiences of Children's Health Care in Australia', International Journal of Sexuality and Gender Studies, vol. 6, no. 3, 2001, pp. 18191.
6. Significant Others, 'Australian Lesbians Get Used to Being Called Mum', Press Release, 30 March 2000.
7. Prime Minister John Howard, Press Conference, Canberra, 1 August 2000. Also, Melbourne Radio 3AW, 19 April 2002.
8. For example, H. B. Biller and J. I. Kimpton, 'The Father and the School-aged Child', in M. E. Lamb, ed., The Role of the Father in Child Development, Wiley, New York, 1997, pp. 143161.
9. When these disadvantages are not present with single motherhood, the negative outcomes are not either. See, for example, S. Golombok, Parenting: What Really Counts?, Routledge, London, 2000. Also see S. McLanahan and G. Sandefur, Growing Up With a Single Parent: What Hurts, What Helps, Harvard University Press, Cambridge MA, 1994.

[Link: Original Article]

Read More

ABC Radio National - "Sperm Donors and the Law" on The Law Report

Damien Carrick: Now for something completely different: the legal rights of sperm donors, and the wider legal cloud which surrounds families that don't fit the heterosexual, two-parent model.

Recently in the case of Re Patrick, the Family Court rejected attempts by the mother of a two-year-old child and her lesbian partner, to restrict the child's contact with his biological father, a gay man who agreed to be a sperm donor.

The couple sought to restrict contact between father and son to just six hours a year. But the court rejected that application. And then, at the father's request, extended a previous consent order allowing fortnightly contact, to allow for increased contact in the future, by 2004 extending to overnight stays, alternate weekends and some school holidays.

So what led a middle-aged gay man (let's call him Jack) to agreeing to father a child?

Jack: I had a friend who had three children with a lesbian couple through donor insemination, and I'd met his children and saw his lifestyle and saw how it had changed his life.

Damien Carrick: So when you were discussing with this couple, what sort of understanding did you reach about what level of involvement you'd have?

Jack: Well I said to the mother that I wanted a similar arrangement, that I'd like to spend one or two days a week with the child, and she was quite agreeable to that, and said that that would suit her plans because she wanted to return to work. So we were hopeful that we would be able to come to mutually agreeable arrangements.

Damien Carrick: Now only a few months into the pregnancy your relationship with the couple soured and they ceased contact with you. The child was born, and after some counselling, it was agreed that you'd have fortnightly contact with the child, but the couple then went to the Family Court seeking to restrict your contact to just something like six hours a year. Now the Court's just rejected that application; you must be relieved.

Jack: Oh it's an enormous relief. I felt that, well it was very much an all-or-nothing situation because their position was that I could see Patrick twice a year under their supervision or their nominated person's supervision, and my position was that I wanted regular fortnightly contact. So it was a massive chasm between the two positions. I was just overjoyed to be granted the regular contact that I sought.

Damien Carrick: So Jack, you now see your child every two weeks; do you consider yourself Patrick's father?

Jack: Yes I've always considered myself his father, and it was perfectly clear to the women and perfectly clear to myself that I intended to be a father from Day 1, so I wouldn't have become involved had I not wanted to be a father. I understand that there are situations where the father is an anonymous donor, or is a known donor but not involved. But that wasn't what I sought, that wasn't what I wanted, and I made that clear.

Damien Carrick: Presumably you're not paying any child support; can you see why some people might say this man has all the rights but none of the responsibilities?

Jack: Look, I am contributing. At the moment I'm putting a small amount of money aside for my son, but that's only because I've got large legal costs that I have to cover first, but when those are out of the way, which will be more than 12 months away, then I will be contributing into my own fund for Patrick's education and for clothing and things like that, and upkeep. But the mother and her partner have resisted any willingness on my part to contribute, and I respect that, because the mother did say when we first sat down that she didn't want to be financially dependent on me. That was her position then. So I suppose I'm wanting to contribute in a way that is not something that they don't want. So I may have to contribute in my own way, but I can contribute in other ways.

Damien Carrick: Jack, not his real name, speaking about his decision to become a father.

Jack's lawyer is Kimberley Hunter, solicitor with Clancy and Triado. She says the decision, the first of its kind in Australia, is an important one which makes a crucial distinction about Jack's relationship with his son, Patrick.

Kimberley Hunter: They found that he's a father; he's not a parent under the Family Law Act. He's someone who has a right of contact and he's someone that's significant to the care of and development of Patrick. And the Court found that it was in Patrick's best interests for Jack to have a continuing relationship with him.

Damien Carrick: One commentator has said that your client achieved the same result as would a father in a heterosexual relationship which had broken down after ten years, and he'd been living with the family for ten years. And that maybe the relationship between your client and Patrick was of a different quality, because your client was a sperm donor, and hadn't been in a relationship with the mother. What's your response?

Kimberley Hunter: Well I'd say to that firstly that generally if you've been living in a family for ten years and the relationship broke down, you would find that the contact would come through to alternate weekend, school holiday contact, contact in the off week for dinner, Father's Day etc. significantly more quickly than the regime that's been set out by these orders. Having said that, certainly there is some thought out there, exactly that in terms of sperm donors being different in relation to the heterosexual arrangements in families. However the child still has a mother and a father, and a need to be known by both, and certainly there are options there in terms of having an unknown donor, and going through other services. The biological mother made the decision to have a known donor, that was her evidence in this matter, and I think what this case brings out is the importance for gay and lesbian families in terms of getting agreements, getting advice in relation to these types of arrangements. It's not new, this type of gay and lesbian family unit has been around for many years in these types of arrangements, and there's many of them that don't get to court, or many of them that do get to court and they're negotiated. But what this case certainly highlights is the fact that the importance of actually the planning stages, making sure you tease out all those issues, making sure that you'll consider the options, making sure that you have some counselling. If for example people do not want there to be any contact, they will probably go through Albury or New South Wales, but if you're going to have a known donor, you certainly have to consider these types of options and be open and willing for them.

Damien Carrick: When you talk about going through to Albury, you're talking about the phenomenon in Victoria known as reproductive tourism, where single women and lesbians will go to Albury-Wodonga on the border, where they can access anonymous sperm banks, which is available to them under New South Wales law, but not available to them under Victorian law as it presently stands. And of course, the legal status quo is a little bit up in the air at the moment, because there's a case before the High Court looking at that very issue.

But those agreements may well be useful in terms of setting out what everybody's expectations are, but they wouldn't be necessarily legally binding. You can't contract to be a parent, it's not like a financial transaction, it's not like buying a house.

Kimberley Hunter: That's exactly right, it's like if you enter into arrangements for child support as part of that agreement, that's not binding, that can be set aside. Exactly the same with this, the Court could set it aside. But what it does, is it puts in place the parties' intentions, and it also focuses the parties on thinking about those issues, perhaps having some counselling or talking about those issues beforehand. And if there's reasons for that to change after the birth, and they're valid reasons, I suppose that's when you'd go to court, in terms of something's come up that concerns you. But it certainly would be much better I think if everyone entering into these types of arrangements seeks that type of advice prior to conception.

Damien Carrick: And in legal terms, do you think that the status quo, the legislation we currently have on the books and the case law, adequately caters for this group of people, for sperm donors and for gay lesbian parents more generally?

Kimberley Hunter: No, I don't. I think that there does need to be some consideration in relation to the laws being changed. In terms of the anomaly in relation to Jack having significant contact, what would be increasing contact, but actually not being a parent, and not giving the parental responsibilities of a parent. He doesn't have the joint long-term parental responsibility in terms of making decisions for such things as health, education, religion; what the judge has given him in the judgement is day-to-day responsibility effectively, for when Patrick's with him.

Damien Carrick: Kimberley Hunter, solicitor with Clancy and Triado.

...

Damien Carrick: Jenny Millbank is a senior lecturer at Sydney University Law School, and an expert in gay/lesbian legal issues. She says 20% of lesbians live with children, and a further 20% plan to have children within five years, most with known donors. So getting the legal framework right is important for an increasing number of children.

Jenny Millbank has concerns about the message the Re Patrick decision is sending to lesbian families. She thinks that Jack was very lucky to gain such a high level of contact with his son.

Jenny Millbank: I think this amount of access is more comparable to a heterosexual couple breaking down, the two camps living separately, and the child going backwards and forwards between them. So although the Court is at some pains to say that the Court's not discriminating against them as lesbian parents, and that the co parent mother does have an important relationship with the child, I think the position in some ways weighs against that, in that the child is not being seen as in a stable family unit.

Damien Carrick: Playing Devil's Advocate though, you could say that the respect which the relationship of the two mothers is given is being upheld, but there's also an acknowledgement for this other, admittedly quite legally ambiguous relationship with the biological father.

Jenny Millbank: Oh look, I don't mean to sound too critical of the decision. I do think it's right that any person who has a close relationship with a child be able to claim access, and that's one of the things about the Australian Family Law Act that was revolutionary, that it put social relationships and emotional relationships above biology and allows any person to bring a claim, and the gay and lesbian community has always been very welcoming of that, because it has meant that, for instance, co mothers can use the Court as well as biological mothers, and that's very important, and in fact lesbian families have used the Court to grant consent orders, parenting orders to lesbian mothers and co mothers equally over the children they're raising, and the Court couldn't do that if it was just sticking to strict legal categories of parents. So I think it's right that the Court does recognise the donor's role and that he does have access to the Court. My query about it is the fact that they're trying to fit a round peg into a square hole in terms of the way they're conceptualising his relationship with the child.

Damien Carrick: Well if we were going to reconstruct the law, what shape would you make the legal hole, what kind of legal framework would you create to make the system as workable as possible?

Jenny Millbank: It's a really though question, and I think it's hard to imagine a legal category when you don't even have the words for something as a social category, and I think even saying gay donor dads is a mouthful when I'm trying to get in 'donor', I'm trying to get in 'dad', and they're gay guys who aren't really either of those things, and we haven't yet conceptualised the category I think, and it's something that I think lesbian and gay communities are going to have to do at a very grassroots level is talk about well what do we intend when we form families in this way, what do we mean? And again, the sociological literature, and I think this is an important point, runs quite contrary to what happened in this case, and there's been a lot of media around this case, a bit of a beat-up I think in the mainstream press. In fact most families go in exactly the opposite direction: the mothers have a known donor, they anticipate a small amount of contact and they have the child, and the donor is besotted with the child and the mother's really happy to have him around and in fact most of them end up having significantly more contact than anyone had anticipated or agreed, and everyone's happy about that. The mothers get a break and the donor provides free child care, and it tends to be a relationship that changes, and changes in a way that is more positive than the parties anticipate when they're entering into the agreement in the first place. So we need to come up with a way that honours people's intentions, but it's also cognisant of the fact that those relationships change through the child's life.

Damien Carrick: When lesbian women seek a known sperm donor, do they tend to head towards gay men in order to provide that service?

Jenny Millbank: Yes, and again the literature both from Britain and from Australia supports overwhelmingly it's gay men who've been chosen.

Damien Carrick: Why do you think that is?

Jenny Millbank: I think it's for a number of reasons. I think that there's a sense of gay men being part of the same community, and having an understanding of what a lesbian family means, that they will support that family structure and not interact with it or with the child in a way that's going to be homophobic or that's going to deny the child reality of their family life. But I also think that if it comes down to a dispute between the partners, between the parties rather, I think that some women are quite concerned that if it's a straight man that he's got a trump card as a heterosexual person against a homosexual family, that he's going to be in some way privileged.

Damien Carrick: Jenny Millbank, senior lecturer at Sydney University Law School.

The Court found that Jack was not a parent under the Family Law Act, but he was entitled to contact as a person with an interest in the care, welfare and development of the child.

Helen Rhoades is a lecturer in Family Law of Melbourne University. She says that this section of the act allows all sorts of people to get contact with the child.

Helen Rhoades: I think there are certainly applications for contact by grandparents and aunts and uncles etc. This section is also used by lesbian co-mothers to get parenting orders. It's also being used by the Family Court, quite recently in the Torres Strait, to give legal recognition to Torres Strait Islanders who have adopted children under a cultural practice which does not have legal recognition. Therefore they're not adoptive parents and yet they can get this order from the Family Court that gives them all of the parental responsibility that a parent would have.

Damien Carrick: Tell me a little bit more about that; presumably it's a case where you've got a clan group where a number of the women take mothering roles?

Helen Rhoades: No, what you're describing there is more in the nature of what happens in Aboriginal communities, and in Torres Strait Islander communities, there's a complete relinquishment of the child from one family to another, and it is done on kinship lines. However the adoptive parents, if I can use that terminology, it's not the terminology they would use, but, do stand in the same sort of parenting position that you or I would parenting our children. It's not a dispersed care-giving arrangement, as occurs in Aboriginal families.

Damien Carrick: It's interesting, isn't it, because we think of the family being a nuclear family, and changes to that, or departures from that, as being an indication of contemporary social change, but in fact family structures have always been quite complex.

Helen Rhoades: I think that's right, and I think that's one of the shortcomings of the Family Law Act provisions as they stand, but they're very much geared to a model that is about heterosexual families with a biological mother and father who've been in an intimate relationship, who shared parenting together, and who've now separated. So that cases like Re Patrick really challenge the applicability of the provisions as they stand.

Damien Carrick: As an expert in Family Law, what for you are the most important features or points to be gleaned from this case?

Helen Rhoades: Well I think there are a couple. One of them is that the case certainly to me seems to reaffirm the priority of the biological tie when it comes to responsibility for children. Justice Guest has made very strong indications in his judgement that there needs to be legislative reform to recognise the parental status of someone in the position of a sperm donor here. And that's very much because he has a biological tie, and wants to take a parenting role. And you could contrast that with the way in which he has constructed the role of the co-mother in this case, who also has no recognition as a parent under the Family Law Act, but in that case there was no suggestion that there should be some legislative change to recognise the position of people in her position. And I see the difference as being the biological tie. Whereas the experts in the case, the psychologist and the psychiatrist who gave evidence in this case, both talked about the importance of psychological relatedness over biological relatedness.

Damien Carrick: So what kind of legal architecture could we build which might acknowledge the status, parent or any other kind of status that we kind of manufacture, to deal with people like the co-parent, the lesbian partner of the mother, and the sperm donor?

Helen Rhoades: I think that's an extraordinarily difficult drafting question Damien. I think that the Family Law Act should reflect more models, a number of different models of families. There was a Full Court decision several years ago called Re CP about the care-giving practices of Tiwi Islander families, and that was a case in which a number of women, the biological mother and some of her sisters and aunts, had got together and sought an order seeking residence of the child as a group, no one person was nominated as the primary care giver, and the way that the legislation stands, it really can't cope with that concept. It's really based on the notion of there being two parents, and in that case, the Full Court of the Family Court called for legislative reform for the Family Law Act to better reflect these others sorts of care-giving arrangements. To date, nothing's been done about that, and it would be a very difficult thing to do. But I think that there's room to have a number of different models rather than just the kind of paradigms separated biological parents model.

Damien Carrick: Helen Rhoades, lecturer in Family Law at Melbourne University.

...

Damien Carrick: That's it for The Law Report this week. A big Thank You to Law Report producer Michael Shirrefs, and to technical producer this week, Carey Dell.
Guests


[Link: Original Transcript]

Read More