NEWS

Court Decides on Parenting Orders for Homosexual Parents

In the recent case of Wilson & ors and Roberts & ors (19 August 2010), the Court had to consider what would be in the best interests of a two year old child where the biological mother and her female partner opposed an application by the biological father and his male partner to spend substantial time with the child.

The Court considered the legal meaning of the word “parent” and concluded that as the mother and her partner consented to the carrying out of an artificial conception procedure, they are the child’s parents. The relevant section of the Family Law Act goes on to say that any other person who provides genetic material (in this case, the biological father), is not deemed to be a parent of that child.

Notwithstanding that the biological father was not deemed to be a parent, in terms of the legislation, this did not prevent him, or his male partner, from making a claim for parenting orders as he was able to show he was “a person concerned with the care, welfare and development of the child”.

Once it had been established that the biological father and his male partner were people who could apply for parenting orders, the Court then had to consider what parenting orders would be appropriate in the circumstances.

The Court was satisfied that from the outset that all parties set out with a shared decision (as two couples) to “create and contribute to the raising of a much wanted and much loved child. Although events did not unfold in that idealised way". The Court went on to say that, as in all children’s matters, it is what is in the child’s best interests that are of paramount importance to the Court and not what is fair to the adults around that child.

The Court accepted that the child had a primary attachment with his mothers but went on to say also that the child should have the benefit of the men’s involvement in his life.

The Court ordered that the mothers will have sole parental responsibility for the child with the child to spend substantial time with the men.

The Court also ordered that the mothers be permitted to relocate with the child in 2012, (after the child had developed a bond with the men) and made further orders for time with the child after relocation.