Amidst the excitement of dreaming about and planning your family, it’s hard to think about things going wrong. But knowing what might happen if things do go wrong might encourage everyone more willing to deal with conflict early, and to maintain goodwill.
If parents separate
If you are a gay male couple recognised as your child/ren’s legal parents (for example, if you conceived through altruistic surrogacy in Victoria) and your relationship ends, then you both remain their legal parents. You can negotiate your own shared care arrangements, as many parents do very successfully.
If you cannot agree, you have access to the same resources as heterosexual parents to help you work it out: family therapy, mediation, or as a last resort, the courts. The court will recognise you both as parents, and must start with the presumption that it is in your child/ren’s best interests to have an ongoing relationship with both of you. However, each case is determined on the specific facts of the situation, and what the court believes is in the child’s best interests, for example when it comes to issues such as where a child lives, who makes decisions about the child’s life, and what level of contact a non-residential parent has. One option may be shared care, if the court thinks that the relationship and communication between the separated parents is strong enough to negotiate this.
If you are a separating couple who originally required parenting orders to recognise the your parenting roles (for example if you conceived through overseas surrogacy), your situation will, in practice, be similar.
Conflict between parents and donors, and between co-parents
The escalation of conflict is not good for anyone. Most importantly, a breakdown in relationships between adults in a child’s life always has a negative impact on the child. Every family has issues to deal with from time to time. Ideally, you will be able to talk them through. It can be useful to involve a third party, such as a counsellor or mediator. Well before things get too difficult. Issues around family and children can get very emotional very quickly. Try hard to see each others’ points of view, to maintain a sense of mutual goodwill and common purpose, and above all to keep the focus on the child/ren.
Australian family law, like the rest of our legal system, is based on an adversarial model that is particularly poorly suited to the complex and emotional nature of conflict over parenting and children. Going to court is extremely stressful and very costly.
The court will not change a child’s legal parentage (the only circumstances in which this happens is in the case of children conceived via surrogacy in Victoria or adoption). A court makes its judgement – about things like where a child lives, who makes the decisions (parenting responsibility) and who has contact with the child – on the facts of the case, and what they see as the child’s best interests. As mentioned, legal parentage is only one factor; a court can certainly award contact, and sometimes some parenting responsibilities, to parties other than the legal parent. This could include, for example, a co-parent, a known sperm or egg donor (and their partner, if they have one), a surrogate, a grandparent, a step-parent or anyone else significant in the child’s life. A court could even award full residence and all parenting responsibilities to someone other than a child’s legal parents, if they think that is in the child’s best interests.
If people other than a child’s legal parents ‘formalised’ recognition of their parenting role through a court order before the relationship broke down, the order provides strong evidence of their role and relationship with the child. But even if there was no such order, unless there is a good reason (related to the child’s safety) why not, the court is likely to make a decision which maintains the child’s relationship with all of the significant people in their life. As always we recommend you seek legal advice on the specifics of your situation.
Many factors will come into play, such as your arrangements to date and your original intentions (for example, as documented in an agreement, or even notes from your discussions). Previous cases also have an impact, although family law is less bound by legal precedent than other parts of Australian law, and this area of law is still emerging.