Transcript National Gay Dad’s Conference 2010

National Gay Dads
Conference 2010
Kristina Antoniades
Accredited Family Law Specialist
Nicholes Family Lawyers
• Straight Dads vs. Gay Dads – Is there a
difference?
• Fostering as a Gay Dad
• Adoption for Gay Dads
LEGAL ISSUES FOR GAY
DADS
How far have we come?
Does it matter to a Court
that I am gay?

LC and MRC (1978) FLC 90 – 158
The homosexuality of the father was
considered.
Court ordered that the mother have
custody of the son and that the father have
access which did not include overnight
access.
1978

L and L (1983) FLC 91 – 353
It was found that in order to ascertain
whether a child should live with or spend
time with a homosexual parent, the Court
must have regard to the following factors;
1983
1. Whether the children raised by their
homosexual parent may themselves
become homosexual, or whether such an
event is likely?
Consideration #1

Whether the child of a homosexual parent
could be stigmatized by peer groups,
particularly if the parent is known in the
community as a homosexual
Consideration #2

Whether a homosexual parent would show
the same love and responsibility as a
heterosexual parent.
Consideration #3

Whether homosexual parents will give a
balanced sex education to their children
and take a balanced approach to sexual
matters.
Consideration #4

Whether or not children should be made
aware of their parents’ sexual
preferences.
Consideration #5

Whether children need a parent of the
same sex to model upon.
Consideration #6

Whether children need both a male and a
female parent figure.
Consideration #7

The attitude of the homosexual parent to
religion, particularly if the doctrines,
tenets and beliefs of the parties’ church
are opposed to homosexuality.
Consideration #8

Doyle and Doyle (1992) FLC 92 – 286
The Family Court granted custody of a
nine-year-old boy to his father who was
living in a permanent homosexual
relationship.
Hannon J:
“a parent’s lifestyle is of no relevance
without a consideration of its
consequences on the child’s well-being.
1992

“Homosexuality is relevant only if it
affects parenting ability or the welfare of
the child”
Hannon J (1992)

Re Mark: An Application relating to
parental responsibilities (2003) FLC 93 –
173
Brown J considered the definition of
“parent” and presumptions of parenting in
application by two homosexual father who
sought orders for joint parental
responsibility for a child “Mark”.
2003

Facts
The parties had returned to Australia with a
baby born pursuant to a surrogacy
arrangement in California.
One of the parties was the biological father
of the child and no other persons sought to
be involved in the proceedings.
Re Mark continued…
The fathers were able to bring their
application pursuant to section 65C of FLA.
Section 65C - Who may apply for a parenting
order
A parenting order in relation to a child may be applied
for by:
(a) Either or both of the child’s parents; or
(b) The child; or
(ba) a grandparent of the child;
(c) Any other person concerned with the care, welfare
or development of the child.
Re Mark continued…

Although the fathers were not considered
“parents” pursuant to the FLA, the Court
was satisfied that they were people who
were concerned with the care, welfare &
development of the child and made orders
for shared parental responsibility.
Re Mark

The law at present
2010
Section 60CA
Child's best interests paramount
consideration in making a parenting
order.
In deciding whether to make a particular
parenting order in relation to a child, a
court must regard the best interests of the
child as the paramount consideration.
Family Law Act 1975

A parent’s homosexuality does not matter
as long as the best interests of the child
are preserved.
Is homosexuality a consideration?
Conception of child impacts on parental
responsibility
 Donor is not a legal parent of a child if
child conceived through assisted
reproductive technology (including self
insemination)
 A donor may be able to bring an
application before a Court pursuant to
section 65C

Status of donor
ADOPTION
What is the current law?

The Adoption Act 1984 (Vic)

Section 11:
An adoption order may be made in favour
of a “man and a woman”.
Homosexual parents can not adopt.
VICTORIA

However, an adoption order can be made
in favour of one party of a same sex
relationship!
VICTORIA continued…

The Age 11 September 2010
The Court allowed a Victorian gay man to
adopt his foster child.
He is in a gay relationship but could only
Adopt as a “single parent”.
Adoption by gay dad

Adoption Act 1988 (SA)
Gay dads can not adopt, legislation
provides that parents must only be an
opposite-sex couple (married or
cohabitating).
South Australia
Adoption Act 2009 (Qld)

In Queensland, same-sex couples cannot
legally adopt a child but allows gay men
to adopt as single or become foster
parents.
QLD

The NSW Parliament passed a bill last
week giving same-sex couples full
adoption rights.

This law has not yet been enacted.
NSW

WA, ACT and Tasmania – same sex
couples have full adoption rights.
WA, ACT & Tasmania

Step parent adoption
In Western Australia and ACT gay co
Fathers may use step parent adoption
Step parent adoption
FOSTER DADS
Can I be a foster dad?

What makes a person eligible to be a
carer?
Foster Dads

Anyone who can provide safe,
appropriate care for children in need
is eligible to apply to be a foster
carer.
Who can be a foster dad?

Race, gender, marital status,
employment, sexuality and religion
do not affect a person’s eligibility to
be a carer.
Sexuality
You do not have to have your own
children to be a foster carer.
Do I have to be a parent?

Carers may go ‘on hold’ or discontinue
volunteering as a carer at any time,
although potential applicants are
encouraged to take into consideration the
importance of stability to children in foster
care and carefully consider the
commitment they are making prior to
accepting a placement.
Can I stop being a foster
parent?

What sort of care is most required?
People are needed to provide all types of
care, from respite to long-term. People
are also needed who can look after sibling
groups in order to keep children from the
same family together. Boys aged
between 6-13 years of age are among the
most difficult children to find foster care
placements for.
Foster Dads

What financial support is provided to
foster carers?
Carers receive a tax-free fortnightly
reimbursement from the Department of
Human Services. The amount of this
reimbursement is primarily dependent on
the age of the child in care and the type of
program the child is involved with (e.g.
general, intensive, complex).
Financial support

What other support is provided to
foster parents?
Support services

Casework staff are on-call 24/7 & are
available to answer any queries that
may arise during placement.

Many agencies and foster carers also
run carer support groups, and some
have a Carer Support Team to
support foster carers throughout the
time they are involved with the
agency.
Support
Kristina Antoniades
Accredited Family Law Specialist
Nicholes Family Lawyers
Level 3, 224 Queen Street
Melbourne VIC 3000
Ph: 9670 4122
E: [email protected]