ࡱ> QSP` !bjbjss 4,,,,,,,,@ 8 @!:B0D0D0D06z059$<hI?9,9,,9SSS,,B0SB0SSB.,,0 (~t /,B090!:/,??X0?,0(S99X!:@@@d @@@ @@@,,,,,, Notes for presentation at Sydney Hearing, National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work Related Entitlements and Benefits 26 July 2006 Explain work of ICLC small community legal centre based in Darlinghurst in inner Sydney. Provides generalist community legal services to people in the inner city area, and also has a specialist state wide gay, lesbian and transgender legal service. As the Discussion Paper issued by HREOC canvassed many of the laws that discriminate against people in same sex relationships, particularly Commonwealth laws, in this presentation I will focus on an areas that were not identified, or were only briefly touched on, in the Discussion Paper. This is the position of same sex couples and their children, a significant area of work for ICLC. For over ten years ICLC has been providing legal advice to lesbian couples who have decided to have and raise a child together using donor sperm. Sometimes an anonymous donor is used, but more commonly there is known donor, usually a gay male friend. There are a range of family forms. Most commonly, the lesbian couple and their child or children will form a family unit. Often the child will know and have some contact with the sperm donor. In some cases the donor will have a closer parental involvement with the child. Very rarely, a gay male couple may have a child using a surrogate mother. In 1999 Inner City Legal Centre published Talking Turkey A Legal Guide to Self Insemination. In 2005 we published a revised and expanded online edition. These publications were developed in response to the demand from lesbian couples and prospective donors for advice. Parent /child relationships in these families in most cases are not legally recognized. The member of the lesbian couple who did not give birth, who I will refer to as the co-mother, has no recognized rights or responsibilities in relation to that child. This can have a significant impact on financial entitlements for both the members of the same sex couple and their children. Some examples are: As noted in the Discussion Paper, there is no entitlement to parenting leave upon the birth of a child for the female partner of a birth mother, This is the position under both the Federal Workplace Relations Act and the NSW Industrial Relations Act. A co-mother does not have an entitlement to paid carers leave to care for her child. There is an entitlement to care for a member of the household which will suffice in many cases. However, there will be circumstances where the child in need of care is not a member of the household of the co-mother. For example, the co-mother may be separated from the birth mother and the child lives with the birth mother, or the child is an adult and lives in a separate household. If a lesbian couple with a child or children separate, the situation relating to child support is complex. If the child resides mainly with the birth mother, the co-mother does not have an obligation to pay child support under the Child Support (Assessment) Act as she is not recognised as a liable parent. The birth mother may be able to seek orders for the payment of child maintenance under the Family Law Act, but the outcome of such an action is uncertain. The Child Support Scheme was established to provide a simple, administrative process for the assessment and payment of child support and the benefits of the scheme should be available to the children of parents in same sex relationships. In contrast, if a child resides mainly with the co-mother after separation, the birth mother would have an obligation to pay child support under the Child Support (Assessment) Act. If a co-mother dies intestate, the child or children have no rights of inheritance under the intestacy provisions of the NSW Wills Probate and Administration Act. There may be grounds for the child to make an application for a share of the estate under the Family Provision Act if the child was a member of the household of the deceased or a dependent, at the time of death. However, not all children will satisfy the criteria of the Family Provision Act, and it is a burden to have to bring an action in the Supreme Court. Any legal actions can be complicated by the difficult family circumstances of some same sex couples. For example, I have had as clients a lesbian couple who had a child together. They were both from migrant backgrounds and had moved to Sydney from interstate. Neither of the women had disclosed to anyone in their immediate or extend family that they were in a lesbian relationship or had a child. The lack of legal recognition of the relationship between the co-mother and the child affects entitlements in the numerous areas mentioned in the HREOC Discussion paper for example tax concessions, veterans benefits, childcare benefits etc To overcome some of the practical difficulties caused by the lack of recognition of the relationship between the co-mother and her child, we recommend that the lesbian couple make an application for consent orders under the Family Law Act, conferring parental responsibility on the co-mother. These orders mean that the co-mother is in a position to consent to medical treatment for the child, or give consent to the childs participation in education and sports activities, but they do not make the co-mother a parent, and do not solve the problems I have referred to above. I would like to contrast the legal position of an opposite sex couple who have a child using donor sperm. By operation of the s14 Status of 鱨վ Act (NSW) and the Family Law Act, the male member of the couple is irrebuttably presumed to be the parent of the child if he was married to or in a de facto relationship with the mother at the time of conception and consented to the conception. This is despite him having no biological connection to the child. We recommend that the Status of 鱨վ Act be amended so that the presumption of parenthood is extended to a female partner of the birth mother. A brief comment on superannuation. We are not experts in this field. We have had clients who would prefer to have more certainty about the distribution of death benefits than is provided by the interdependency test and the exercise of the discretion of the trustee in applying the test     ICLC inner city legal centre PO Box 368, Darlinghurst NSW 1300 Suite 6,First Floor, 66 Oxford Street, Darlinghurst NSW 2010 tel (02) 9332 1966 fax (02) 9360 5941  2_"3G3I ![!b!q!w!!!!!!hH":@CJ hH":CJ hH"CJhH":@CJ EHOJQJhH":@CJ^EHOJQJhvXjhvXU hH"6hH"+ = > 8945 OPh^h & F ! ![!q!!!!!! $ &dV9a$$ &dVd2a$ d<&d P d 8! & F!!! 8!2 0 0P|. 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