Separation and rainbow families: what happens when it ends?

In my last post, we looked at whether same-sex couples can have both mothers’ names listed on their child’s birth certificate. Just to recap, the legislation is slightly different in each state and territory, but in general two women can be listed on a birth certificate provided they are in a de-facto, or ‘marriage-like’ relationship and the child is conceived by artificial insemination with the consent of both parties.

But what happens if the couple separates? If both parties are listed on the birth certificate, do they have the same legal rights and responsibilities?

Parental responsibility

When a couple separates, the Family Law Act presumes that it is in the best interests of the child for both parents to have equal shared parental responsibility for the child (see section 61DA of the Act). This presumption applies to parents living all Australian states and territories. 

Parental responsibility means the duties, powers, responsibilities and authority which, by law, parents have in relation to their children. In practice, this involves decisions about what school your child goes to, where they will live, whether they will be brought up a particular faith.

Assuming both parents are the child’s ‘legal parents’, the presumption of equal parental responsibility is not affected by whether they are or are not biologically related to the child.

Parenting Orders

The presumption of equal parental responsibility does not relate to the amount of time the child spends with each of the parents. If the couple were unable to decide this matter between them, they can apply to the Family Court for a Parenting Order (see section 65D(1) of the Act).

In these matters, the Court’s paramount consideration is the best interests of the child. It will also consider whether the child spending equal time, or ‘substantial and significant time’, with each of the parents is reasonably practicable. The Court will have regard to matters such as:

  • how far apart the parties live from each other;
  • their capacity to communicate effectively; and
  • any other relevant matter.

Getting help

Separation is a stressful time for any family, and often involves complex legal issues. If you need legal assistance, you can get advice from:

The Family Court of Australia provides general information and referrals to the public, but cannot provide legal advice. It has also published a brochure containing information for people considering, or affected by separation or divorce.

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