PART 2:
FREQUENTLY ASKED QUESTIONS
ABOUT THE CO-PARENT:

Does the co-parent have any rights or responsibilities regarding the child?

There are no automatic legal rights or responsibilities that apply to the relationship between the co-parent and the child. However, the case of W v G (1996) has shown that a co-parent may be ordered by the court to accept some responsibility for financially supporting the child (child maintenance). In that case the co- parent was ordered to fulfil a promise she had made to the mother to financially support the children, because she had encouraged the mother to believe that she could rely and act on that promise of support in becoming pregnant.

The Property (Relationships) Act 1984 now enables same sex de facto partners (ie: people who live together as a couple) to go to the District Court or NSW Supreme Court for orders about property division on the breakdown of a relationship. This can include claims for child maintenance as part of a property division where both parties have taken parental responsibility for the welfare of a child.

A co-parent can also gain legal recognition of her relationship with the child through the courts. She can apply to the Family Court for parenting orders regarding the child as a person "concerned with the care, welfare or development of the child". This can be done in two situations:

Where the mother and co-parent both agree that the co-parent's relationship with the child should be legally recognised.

The Family Law Act enables joint parenting orders to be made by consent between the parties in favour of both the mother and the lesbian co-parent. This is the most effective way for the mother and co-parent to legally share the rights and responsibilities regarding the child. Independent legal advice should be obtained when making parenting orders by consent.

At the end of this Guide is an example of an 'Application for Consent Orders' which the mother and co-parent can file in the Family Court, should they wish to seek orders in which they legally share parental responsibility for the child. Once made, orders for parental responsibility confer joint authority on the mother and co-parent to make decisions concerning the day to day and long term care, welfare and development of the child, including such issues as schooling, religious instruction and medical treatment.

Where there is a dispute between the mother and co-parent regarding the child.

In the event of a dispute between the mother and co-parent, the Family Court will resolve the dispute and make orders based on the "best interests of the child". The court will take into account the factors discussed above. The co-parent may be in a stronger position if a joint parenting order has already been made. Both parties will be required to undergo counselling with a Family Court approved counsellor prior to a final determination of the dispute.

Can a co-parent adopt her partner's child conceived through donor insemination?

Under the Adoption of Children Act 1965 (NSW) a child becomes the child of the adoptive parent(s) and the legal relationship with the birth parent is severed permanently. At present, gay men and lesbians are not legally able to adopt as a couple, but may apply to adopt a child as a single person. If a co-parent were to adopt the child of her partner it would mean that the mother would no longer be considered the legal parent of the child. For this reason adoption is not usually considered to be a feasible option. It should be noted that privately arranged adoptions are illegal.

However, much of what the mother and co-parent may be wishing to achieve when they think about adoption - the legal sharing and recognition of rights and responsibilities regarding the child - may be achieved by obtaining parenting orders from the Family Court by consent. (See above under 'Does the co-parent have any rights or responsibilities regarding the child?'). Specific legal advice should be sought about this.

Can the mother state in her will that the co-parent will care for the child the child if she dies?

A legal parent can nominate someone in their will to be the guardian of the child(ren) in the event of the parent's death (known as a 'testamentary guardian'). Guardianship of this nature becomes particularly important where there are no existing orders from the Family Court setting out who will be responsible for the care of the child.

The Family Court no longer makes orders appointing people guardians of children, but may make specific issues orders as well as parenting orders. For example if the mother dies, the Family Court may make orders granting residence to the co- parent and orders that she alone or with some other interested person share responsibility for the long term care, welfare and development of the child.

The mother's nomination of a testamentary guardian can be challenged in court by other interested people such as grandparents, or in some cases the donor. Although the mother's nomination may not be followed by the court, it is still recommended that provision be made in a will so that the court can assess the deceased's wishes. Any decision of the court will ultimately depend on the court's assessment of the child's best interests.

Any person with an interest in the "care, welfare or development of the child" - including a co-parent and the donor - can apply to the Family Court for parenting orders on the death of the mother. Any existing contact, residence or specific issues orders would be taken into account by the court, and the court would make such orders as it considers are in 'the best interests of the child'.

It should be noted that regardless of whether or not there is a will nominating a testamentary guardian, if the co-parent has had a significant involvement with the child and its development for several years, a court would be unlikely to discontinue this, as to do so would probably not be in the best interest of the child.