What rights does the child have to my estate?

Parents, co-parents, donors, donors' partners, surrogates, and adoptive parents may all make provision in their Will for a child and are free to dispose of their property (estate) as they see fit.

It is important for an individual to have a Will to ensure when they die their wishes are clear and can be given effect.

If an individual dies without a Will it is called intestacy. This means that the Succession Act rules regarding how the estate will be distributed apply. Priority is given to a spouse/de facto partner, then a child, and then to other close relatives.

A Will may be contested under the Succession Act if it is considered that the testator (the person who made the Will) has failed to make proper provisions for an 'eligible person'.

Where there is no Will, claims can also be made for a share of the estate. To contest or make a claim, an eligible person may apply for a family provision order in respect of the estate.

ligible persons include spouses or former spouses, de facto partners, children, and other dependents that were members of the deceased's household.

The definition of a child of a deceased person is inclusive. If the deceased person was in de facto relationship or domestic relationship with a person at the time they died, a 'child' will include:

  • A person adopted by the deceased person;
  • A child of a surrogacy arrangement in respect of whom a parentage order was made and the deceased person was their intended parent;
  • A child of an ART procedure where two women in a de facto relationship consented to the procedure and the deceased person was either the birth parent or co-parent; or
  • A child born as a result of heterosexual intercourse and the deceased person is presumed to be the parent.

In the above situations, the deceased person is the legal parent of the child.

In circumstances where there are three or more parents, informal parenting arrangements, a donor's name recorded on the birth certificate, a co-parent's name not recorded on the birth certificate, or a significant relationship between the child and the deceased person; the Court may consider the nature and duration of the relationship, any obligations or responsibilities between the people (or adult and child), or any other factors in determining if someone is an eligible person to make an application to contest or make a claim to an estate.

The usual limitation period to make a claim under the Succession Act is 12 months from the death of the deceased. After 12 months, an individual must 'seek leave' (or permission) from the court to bring an application.

Can health insurance be obtained at the reduced 'family' rate?

Most health insurance companies do offer the family rate to LGBTIQ couples, and those that refuse to do so can be pursued for discrimination under the Sex Discrimination Act 1984 (Cth) and the Anti-Discrimination Act 1977 (NSW). In the case of Hope v NIB Health Funds Ltd (1995) it was found that the insurance provider had discriminated against a gay couple and their child by refusing them the concessional family rate for health insurance.

Is the issue of homosexuality or gender diversity taken into account by the courts?

In making any decision regarding a child, a court's paramount consideration will be the best interests of the child. While the Family Law Courts may consider the parties' sexualities or gender diversity when assessing what will be in the child's best interests, the effect this has will depend on the circumstances of the individual case before the court. The Family Court in Wilson v Roberts (No 2) (2010) recognised that it deals with a full spectrum of families, including homosexual parents, and stated: 'It is always the particular child and their particular needs that must be at the centre of a decision'.

Am I able to adopt my partner's child?

LGBTIQ de facto and registered partners, and LGBTIQ individuals are eligible to apply for adoption in NSW. An application can be made in respect of a child known to the person/s (e.g. a partner's child) or a child who has been relinquished by other parents in NSW or overseas. Under the Adoption Act 2000 (NSW), once an adoption order has been made the rights of the existing legal parent(s) are transferred to the new parent(s), who are then, for all purposes, treated as the legal parents of that child.

Before a court will allow an individual ('step parent') to adopt their partner's child, the court must be satisfied that an adoption order is clearly preferable and in the best interests of the child to any other legal action that could be taken. For example, an order may be made granting the step parent 'parental responsibility' but not full parental status. As a consequence, adoption orders are difficult to obtain. This is because making an adoption order severs the legal relationship between the child and the child's other existing legal parent who is not the step parent's partner. The consent of both the child's legal parents and any person who has parental responsibility for the child is also usually required, although consent requirements can be waived in certain circumstances.

The Adoption Act sets out a number of other criteria that must be met before an adoption order will be made, including:

  • Both partners must live in NSW;
  • The couple must have been living together in a de facto or registered relationship for a continuous period of at least two years;
  • Both partners must be of good repute and be fit and proper persons to fulfil the responsibilities of parents;
  • The child must be at least five years old;
  • The child must have lived continuously with their original parent and their partner for at least two years (unless the child is 18 years of age or more); and
  • The court must be satisfied that an adoption order would be in the best interests of the child.

Due to the extent of the requirements that must be met, and the greater availability of parenting orders, adoption may be not be an achievable outcome for many couples.