Under the Family Law Act 1975

What sort of arrangements can be made for children after separation?

The parents of a child may enter into a parenting plan, which can set out such things as who a child is to live with, the time the child is to spend with other people, what school they go to and so on.

Who can apply to the Court for orders about children?

A child’s parents, grandparents or other relatives, the child or anyone with an interest in the child’s care, welfare and development can apply to the Court for orders about the child.  Where there is an agreement about what orders should be made about the child this can be done by Consent Orders.

What does the court consider when making orders in relation to children:

When making parenting orders the Court looks at, amongst other considerations, the benefit to the child of having a meaningful relationship with both the child’s parents, the need to protect the child, the relationship between the child and the parents and other people.  There are guidelines set out in the Family Law Act which define how the court is to determine what is in the child’s best interest.  

What kind of orders can be made?

The following sorts of parenting orders (this is not an exhaustive list) can be made:

• Who the child lives with and spends time with,
• Who can make decisions which affect the child, such as: what school the child attends.

What does equal shared responsibility mean?

Equal shared parental responsibility means that each person who has parental responsibility must consult the other in relation to decisions which effect the long term interest of the child, (such as those examples above) and make a genuine effort to come to an agreement.

What are the implications of having shared responsibility?

If parental responsibility is shared then the court must consider whether it is practicable and in the child’s best interest to spend equal time with each of the parties who share parental responsibility.  If it is not, then the court must consider the child spending significant and substantial time with each of the parents.

Will the court take into account homosexuality in making parenting orders?

The parties sexuality may be an issue which the Court considers depending on the issues raised in the case by the parties themselves.  The court must make orders which are in the best interest of the child.  There have been many decisions of the Family Court where parenting orders have been made in favour of gay fathers and lesbian mothers and co-mothers.

In 2005, Clayhills Solicitors acted for the non-biological mother who was seeking orders in relation to the child of the relationship.  The result was a very positive one for the non-biological mum. 

The Sydney Morning Herald ran a front-page article, “Mum v Mum: the new custody battle” (by Adele Horin, September 7, 2005)

“Two Sydney women who had a long-term relationship have started a custody battle for a three-year-old boy conceived through donor insemination.

The non-biological mother claims she has been the psychological and emotional parent since the boy was born, and that he has spent more time with her in the years since the couple separated. The looming Family Court battle highlights a dilemma in lesbian relationships where both women may agree to have a child, and raise it together, but only one can give birth. Under NSW law the partner who does not bear the child has no legal rights as a parent.

Nic Clayhills, solicitor for the non-biological mother, said homosexuals had progressed since the 1970s from fighting for rights to recognise difference, to fighting to be accepted as normal.

"That involves wanting the mortgage, the dog, the child and the marriage," she said. "And it's extending to disputes in the Family Court." “