Same-Sex Parents Who Separate: Who gets the child? The law simplified.

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Presentation transcript:

Same-Sex Parents Who Separate: Who gets the child? The law simplified

Law Reform Timeline Development of Same-Sex Relationship Recognition Changing Nature of Child Custody and Parental Responsibility Marriage Act 1961(Cth) – Same-Sex Couples NOT recognised Family Law Act 1975 (Cth) 2008 AHRC’s report Same-Sex: Same entitlements – recommended amending federal laws that discriminated against same-sex couples and their children Same-Sex Relationships (Equal reatment in Commonwealth Laws – General Law Reform) Act 2008 (Cth) – amended over 85 laws to extend definitions to include ‘same-sex’ couples and parents Netherlands became 1 st country to recognise same- sex relationships. Belgium, Spain and Canada have followed. Marriage Amendment Act (Cth) passed – reaffirmed ‘union of a man and a woman’ States followed with amendments Family Law Amendments (Shared Parental Responsibility) Act 2006 (Cth) – introduced 2 types of considerations now focused on best interest of child Family Law Amendmenet (De Facto Financial Matters and Other Measures) Act 2008 (Cth) – property and maintenance matters for separating same-sex couples are now determined by the Fam Court or FCCC In the past, Parents sought ‘custody and control’ over their children, enforcing their parental rights Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) – new provisions to fix conflicts between best interest of child and the child’s meaningful relationship with parents

Court Considerations No presumption in favour of biological parent over the non-biological parent To whom the child lives with and spends time with depends on what the best interests of the child are To determine this, there are primary and additional considerations as well as presumptions

Best Interest of the Child 1.Primary Considerations: meaningful relationship with both parents Protection from harm being exposed to abuse, neglect or family violence

Best Interest of the Child 2. Additional considerations: The child’s wishes The nature of the relationship between the child and the parents The financial ability of the parent to care for the child The ability of the parent to provide for intellectual and emotional needs of the child The level of connection between the parents.

Presumption of Shared Responsibility This means the Court will presume that it is in the best interests of the child for parents to have equal shared responsibility for the child Does not apply: where there is family violence and child abuse Rebutted: if shown it is not best interest of the child Other considerations: if it is “reasonable practicable” to have this order.