House of Representatives

Supplementary Explanatory Memorandum

Circulated By the Authority of the Attorney-General, the Hon Robert Mcclelland Mp

Key concepts and definitions

Child

6 In order to recognise children of same sex couples, the General Law Reform Bill expands the classes of children that may be taken to be the child of a couple. The General Law Reform Bill provides that for the purposes of the Acts or provisions of Acts amended a child would be considered to be a person's child where that child was the 'product of the relationship' the person has or had as a couple with another person. This was intended to ensure that children of same sex couples were recognised across the range of Commonwealth laws amended. A number of submissions to the Senate Standing Committee on Legal and Constitutional Affairs' inquiry into the General Law Reform Bill raised concerns about this definition.

7 Since the introduction of the General Law Reform Bill, Government amendments to the Family Law Amendment Bill, which amends the Family Law Act, have been passed by the Senate. The amendments to the Family Law Amendment Bill are intended to implement the bipartisan recommendation made by the Senate Standing Committee on Legal and Constitutional Affairs that the definition of 'child of the de facto relationship' and the parenting presumptions in section 60H of the Family Law Act be amended to allow children of same sex relationships to be recognised as a child of the relationship for the purposes of the entire Family Law Act. The classes of children falling within the amended provisions of the Family Law Act are substantially equivalent to the classes of children that the Government intended to cover with the 'product of a relationship' definition in the General Law Reform Bill.

8 The definition of child in these amendments to the General Law Reform Bill therefore relies on the expanded meaning of child in the Family Law Act which will result from the amendments made by the Family Law Amendment Bill to Part VII of that Act. The meaning of 'child' in the Family Law Act will include children:

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born to a woman as the result of an artificial conception procedure while that woman was married to, or was a de facto partner of, another person (whether of the same or opposite-sex), and

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who are children of a person because of an order of a State or Territory court made under a State or Territory law prescribed for the purposes of section 60HB of the Family Law Act, giving effect to a surrogacy agreement.

9 This will ensure that the children of same-sex couples are recognised consistently across Commonwealth laws and responds to concerns raised in relation to the 'product of the relationship' definition of child contained in the General Law Reform Bill. This approach addresses the concerns of the Committee in relation to the definition of 'child' in the General Law Reform Bill. It is also consistent with the approach in proposed amendments to the Superannuation Bill.

10 In order to incorporate the Family Law Act concept of 'child', these amendments replace the 'product of the relationship' definition wherever it occurs with a reference to a child 'within the meaning of the Family Law Act 1975'. The Government intends that this phrase should be interpreted to refer to all children who come within the meaning of 'child' in the Family Law Act, notwithstanding the fact that certain provisions of the Family Law Act do not apply in all States. In particular these definitions will extend to children in Western Australia despite the fact that subsection 69ZE(2) of the Family Law Act provides that Part VII of that Act does not apply in that State.

Legal Responsibility

11 The General Law Reform Bill amends a number of provisions relating to 'legal responsibility', 'care, custody and control' and related concepts as they relate to children. These amendments were intended to ensure that same sex parents could come within provisions referring to these concepts where children within the 'product of a relationship' definition are in their care, and where there is no court order in place which is inconsistent with the person having legal responsibility.

12 The proposed amendments to the Family Law Act to recognise same sex parents will have the result that same sex parents will automatically be considered to have 'parental responsibility'. This is because section 61C of the Family Law Act provides that each of a child's parents has parental responsibility. Parental responsibility is defined in section 61B to include all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. The proposed amendments to the Family Law Act will therefore provide same sex parents with a substantial degree of legal responsibility over their children.

13 As a result of these amendments to the Family Law Act, it is no longer necessary to include in the General Law Reform Bill any amendments deeming same sex parents to have legal responsibility or custody, care and control for their children. Therefore, these amendments will remove any such amendments from the General Law Reform Bill.

De facto partner

14 The General Law Reform Bill inserts a definition of 'de facto partner' in the Acts Interpretation Act. The definition encompasses members of both same sex and opposite sex de facto relationships. This amendment is now being moved through parliamentary amendments to the Superannuation Bill to ensure that the Acts Interpretation Act definition of 'de facto partner' is in place when the Superannuation Bill commences. These amendments therefore remove the amendment to the Acts Interpretation Act from the General Law Reform Bill.

Tracing rule

15 In order to ensure that family relationships referred to in the Acts being amended include relationships that are traced through the child-parent relationship, the General Law Reform Bill inserts a tracing rule wherever terms such as 'relative', 'brother', 'aunt' and 'grandparents' are used in the Acts. Examples 1 and 2 below outline circumstances where the tracing rule can be used to determine a relationship.

Example 1

J is in a de facto relationship with S. During the relationship J and S decide that S will undergo an artificial conception procedure using donated gametes. The procedure takes place and S gives birth to H. Later, J and S decide to have another child - S will again undergo an artificial conception procedure using donated gametes, but from a different source. The procedure takes place and S gives birth to T. Both procedures comply with the requirements of section 60H of the Family Law Act, and J and S are therefore both the parents of each of the children. Whilst T is the child of J and S, he is not the biological sibling of H.

16 The use of the tracing rule in this instance will allow T to be considered to be H's brother because the relationship is traced through the child-parent relationship that each child has with J and S. This will continue to be the case even if the relationship between J and S were to break down at a later time. Without the tracing rule, T will only be considered to be H's half brother.

Example 2

J is in a de facto relationship with S. S has a brother T. During the relationship, J and S decide that J will undergo an artificial conception procedure using donated gametes. The procedure, which complies with the requirements of section 60H of the Family Law Act, takes place and J gives birth to H.

17 T will be considered to be H's uncle in this instance because the relationship is traced through the child-parent relationship which arises because of section 60H of the Family Law Act. This will continue to be the case even if the relationship between J and S were to break down at a later time. Without the tracing rule, T will have no familial link to H and would not be considered to be T's uncle.