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If relationships break down

Amidst the excitement of dreaming about and planning your family, its 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.

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.

If parents separate

If you are a lesbian couple recognised as your child/en’s legal parents and your relationship ends, then you are both still their legal parents. You can negotiate your own shared care arrangements, as many women 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, court. 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.

Conflict between parents and donors, and between co-parents

Australian family law, like the rest of our legal system, is based on an adversarial model particularly poorly suited to the complex, emotional nature of conflict over children. Going to court is extremely stressful and costly. But if you do end up in court, remember that family law allows anyone with ‘an interest’ in a child’s welfare to apply for a court order creating contact or other arrangements with regard to the child. This could include a grandparent, a known donor, conceivably a clinic-recruited donor you have had contact with before your child was 18, and certainly a co-parent.

The family court will not change who is recognised as a child’s legal parents in such cases, but will decide on issues like who sees, lives with and makes decision for a child on the individual facts of the case, and what they see as the child’s best interests. A court could certainly make an order for a donor (and his partner, if he has one) or for male co-parent/s to have contact, and even some parenting responsibilities, if it considers this to be in the best interests of the child.

If people other than a child’s legal parents ‘formalised’ recognition of their role through a consent order before the relationship broke down, this 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; your arrangements to date might be a factor, as might your original intentions (for example, as documented in an agreement) and any orders made previously. 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.

We are a volunteer community organisation based in Victoria, Australia. We support and promote equality for ‘rainbow’ families (parents and prospective parents who identify as lesbian, gay, bi, transgender or intersex, and their children).