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National Gay Dads Conference 2010 Kristina Antoniades Accredited Family Law Specialist Nicholes Family Lawyers.

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Presentation on theme: "National Gay Dads Conference 2010 Kristina Antoniades Accredited Family Law Specialist Nicholes Family Lawyers."— Presentation transcript:

1 National Gay Dads Conference 2010 Kristina Antoniades Accredited Family Law Specialist Nicholes Family Lawyers

2 LEGAL ISSUES FOR GAY DADS Straight Dads vs. Gay Dads – Is there a difference? Fostering as a Gay Dad Adoption for Gay Dads

3 Does it matter to a Court that I am gay? How far have we come?

4 1978 LC and MRC (1978) FLC 90 – 158 The homosexuality of the father was considered. Court ordered that the mother have custody of the son and that the father have access which did not include overnight access.

5 1983 L and L (1983) FLC 91 – 353 It was found that in order to ascertain whether a child should live with or spend time with a homosexual parent, the Court must have regard to the following factors;

6 Consideration #1 1. Whether the children raised by their homosexual parent may themselves become homosexual, or whether such an event is likely?

7 Consideration #2 Whether the child of a homosexual parent could be stigmatized by peer groups, particularly if the parent is known in the community as a homosexual

8 Consideration #3 Whether a homosexual parent would show the same love and responsibility as a heterosexual parent.

9 Consideration #4 Whether homosexual parents will give a balanced sex education to their children and take a balanced approach to sexual matters.

10 Consideration #5 Whether or not children should be made aware of their parents sexual preferences.

11 Consideration #6 Whether children need a parent of the same sex to model upon.

12 Consideration #7 Whether children need both a male and a female parent figure.

13 Consideration #8 The attitude of the homosexual parent to religion, particularly if the doctrines, tenets and beliefs of the parties church are opposed to homosexuality.

14 1992 Doyle and Doyle (1992) FLC 92 – 286 The Family Court granted custody of a nine- year-old boy to his father who was living in a permanent homosexual relationship. Hannon J: a parents lifestyle is of no relevance without a consideration of its consequences on the childs well-being.

15 Hannon J (1992) Homosexuality is relevant only if it affects parenting ability or the welfare of the child

16 2003 Re Mark: An Application relating to parental responsibilities (2003) FLC 93 – 173 Brown J considered the definition of parent and presumptions of parenting in application by two homosexual father who sought orders for joint parental responsibility for a child Mark.

17 Re Mark continued… Facts The parties had returned to Australia with a baby born pursuant to a surrogacy arrangement in California. One of the parties was the biological father of the child and no other persons sought to be involved in the proceedings.

18 Re Mark continued… The fathers were able to bring their application pursuant to section 65C of FLA. Section 65C - Who may apply for a parenting order A parenting order in relation to a child may be applied for by: (a) Either or both of the childs parents; or (b) The child; or (ba) a grandparent of the child; (c) Any other person concerned with the care, welfare or development of the child.

19 Re Mark Although the fathers were not considered parents pursuant to the FLA, the Court was satisfied that they were people who were concerned with the care, welfare & development of the child and made orders for shared parental responsibility.

20 2010 The law at present

21 Family Law Act 1975 Section 60CA Child's best interests paramount consideration in making a parenting order. In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

22 Is homosexuality a consideration? A parents homosexuality does not matter as long as the best interests of the child are preserved.

23 Status of donor Conception of child impacts on parental responsibility Donor is not a legal parent of a child if child conceived through assisted reproductive technology (including self insemination) A donor may be able to bring an application before a Court pursuant to section 65C

24 What is the current law? ADOPTION

25 VICTORIA The Adoption Act 1984 (Vic) Section 11: An adoption order may be made in favour of a man and a woman. Homosexual parents can not adopt.

26 VICTORIA continued… However, an adoption order can be made in favour of one party of a same sex relationship!

27 Adoption by gay dad The Age 11 September 2010 The Court allowed a Victorian gay man to adopt his foster child. He is in a gay relationship but could only Adopt as a single parent.

28 South Australia Adoption Act 1988 (SA) Gay dads can not adopt, legislation provides that parents must only be an opposite-sex couple (married or cohabitating).

29 QLD Adoption Act 2009 (Qld) In Queensland, same-sex couples cannot legally adopt a child but allows gay men to adopt as single or become foster parents.

30 NSW The NSW Parliament passed a bill last week giving same-sex couples full adoption rights. This law has not yet been enacted.

31 WA, ACT & Tasmania WA, ACT and Tasmania – same sex couples have full adoption rights.

32 Step parent adoption In Western Australia and ACT gay co Fathers may use step parent adoptionstep parent adoption

33 Can I be a foster dad? FOSTER DADS

34 Foster Dads What makes a person eligible to be a carer?

35 Who can be a foster dad? Anyone who can provide safe, appropriate care for children in need is eligible to apply to be a foster carer.

36 Sexuality Race, gender, marital status, employment, sexuality and religion do not affect a persons eligibility to be a carer.

37 Do I have to be a parent? You do not have to have your own children to be a foster carer.

38 Can I stop being a foster parent? Carers may go on hold or discontinue volunteering as a carer at any time, although potential applicants are encouraged to take into consideration the importance of stability to children in foster care and carefully consider the commitment they are making prior to accepting a placement.

39 Foster Dads What sort of care is most required? People are needed to provide all types of care, from respite to long-term. People are also needed who can look after sibling groups in order to keep children from the same family together. Boys aged between 6-13 years of age are among the most difficult children to find foster care placements for.

40 Financial support What financial support is provided to foster carers? Carers receive a tax-free fortnightly reimbursement from the Department of Human Services. The amount of this reimbursement is primarily dependent on the age of the child in care and the type of program the child is involved with (e.g. general, intensive, complex).

41 Support services What other support is provided to foster parents?

42 Support Casework staff are on-call 24/7 & are available to answer any queries that may arise during placement. Many agencies and foster carers also run carer support groups, and some have a Carer Support Team to support foster carers throughout the time they are involved with the agency.

43 E: Kristina Antoniades Accredited Family Law Specialist Nicholes Family Lawyers Level 3, 224 Queen Street Melbourne VIC 3000 Ph: 9670 4122

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