Same Sex Relationships
Family Court of WA Confirms that Gay Dads are on an Equal Legal Footing re Children if they separate
In a recent decision Gornik and Thorburn [2022] FCWA 77 the Family Court of Western Australia confirmed that after separation, both the biological and non-biological gay dad start on an equal legal footing when it comes to rights re caring for and spending time with the child. Sometimes, non-biological dads mistakenly feel that they have less legal rights. This case confirms once again that both gay dads start on an equal basis. The test is not who is the biological father but rather, whether one or both dads are “concerned with the care, welfare or development” of the child. That is not to say that equal care will be ordered. That’s a matter of determining what is in the best interests of the child- as in all children’s cases.
The push for fertility law overhaul so gay men can become parents
Did you know WA’s in-vitro fertilisation and surrogacy laws are the only ones in Australia that deny access to same-sex male couples? As reported in the West Australian on 19th of December 2021, more than 68 per cent of West Australians think that should change.
The study, based on a survey by Painted Dog Research, was commissioned by Kavanagh Family Lawyers, which assisted advocacy group GayDads WA in its submission to a 2018 review of the laws, leading to a standing committee concluding they were discriminatory.
Don’t damage your case online – social media and Family Court proceedings
Whether we like it or not, social media plays a major part in our daily lives. Facebook and Instagram can be useful tools for communicating with your ex or sharing photos of your children. However, if you have ongoing proceedings in the Family Court then you should always be aware that what you share online can make its way into the courtroom and this can have disastrous consequences.
When can my social media presence damage my own case?
Parenting Matters
It is an offence to identify parties to a family law case. Remember those drunken photos you posted to Instagram while you were out with your friends on Friday night? Or the angry status you posted on Facebook after you found out that your ex cheated on you? Or that story you posted on Snapchat where you ranted about the recent court hearing in your matter?
These posts might not be so bad in context, but once they’re annexed to an affidavit and presented to the court, they can be seen as a breach of the confidentially rules and evidence of your character and capacity to parent, no matter how #SorryNotSorry you are.
Financial Matters
Doing something as simple as updating your LinkedIn with your new job or posting a picture of your new #TreatYourself purchase can be hazardous if you post it before first disclosing it to your ex!
How do I use social media responsibly during a family law dispute?
- Respect the rules of confidentiality and don’t identify parties to a case.
- Think before you click – don’t use social media to blow off steam or comment on Court proceedings. Better yet, consider staying off social media until your matter is resolved.
- When in doubt, don’t – if you think there’s even the smallest chance that a post could be misinterpreted and land you in hot water with your ex or the Court, then don’t post it.
- Update your privacy settings – whether you’re an Instagram influencer or an infrequent Facebooker, it is always best to try and minimise your presence during Family Court proceedings.
Please note that the above information does not constitute legal advice and every case turns on its own unique facts. If you would like to obtain legal advice about family law matters, please contact Kavanagh Lawyers on 08 6557 5888 or email reception@kavlaw.com.au.
Same-sex couples in Western Australia could have children using surrogates
The West Australian reports some good news for same sex couples. Let’s hope the review also addresses issues around recognition of parenting rights for same sex fathers and mothers.
WA same-sex couples could have children using surrogates under planned law changes
Same Sex Marriage – What Does It Mean For Me And My Family?
The Marriage Amendment (Definition and Religious Freedoms) Act 2017 came into force on 9 December 2017. In practical terms how does the Act affect me?
Marriage
- The most obvious benefit is that same sex couples can now apply to and get married effective 9 December 2017.
- A 30 days-notice period is required and in some circumstances (e.g. life-threatening issues) the notice period may be waived.
- You can also get married in an Australian Embassy.
- If you were previously validly married overseas prior to 9 December 2017 your marriage will now be recognised under Australian Law.
- Same Sex Marriages previously solemnised in Australia at foreign Embassies and Consulates (e.g. The United Kingdom Consulate in Perth) will also be recognised.
Children
- No significant changes have occurred in relation to the Children of same sex marriages in terms of recognising same sex couples as parents or allocating parental responsibility.
Property, Superannuation and divorce.
- Same sex married couples (married overseas or in Australia), having been separated for 12 months and living in Australia can divorce in Australia.
- Same sex married couples married in Australia will have access to the Family Court to divide their property on separation.
- Same sex married couples in Western Australia can split their superannuation in the event of separation- an option not open to de facto couples in Western Australia.
Equality before the Law
- The recent legislative changes have greatly improved the rights of same sex couples in terms of marriage. However, the rights and recognition of same sex parents and their children are not the same as those of heterosexual married couples and the children of heterosexual marriages and de facto relationships. These issues are further complicated by state surrogacy laws and traditional assumptions in law re marriage and relationships. This is an area of the law that requires discussion, debate, and ultimately policy and legislative reform.
Kavanagh Lawyers is fortunate to have so many same sex clients. Our lawyers are highly experienced in dealing with the particular challenges that same-sex couples face regarding family law. If we can be of assistance, please contact us.
Court refuses to make property adjustment despite 27 year de facto relationship
In Chancellor & McCoy[ 2016] FCCA 53 a Single Judge dismissed an application for a property adjustment by a party to a same sex de facto relationship of 27 years. The court held (relying in Stanford) that it was not ‘just and equitable’ (i.e. fair) to make an adjustment of the property interests of the parties for the following main reasons:
- There was no evidence before the Court that the financial and non-financial contributions (renovations) made by one party had actually improved the value of the properties and therefore no equitable interest had been established.
- There was no intermingling of finances
- “Each” party could use the balance of their wages as they wished
- No joint financial decision making or sharing of information about individual financial decision making
- Neither party provided for the other in their respective wills or in their superannuation
- The payment of a small amount of rent was “financial assistance” rather than “financial intermingling”
At first glance this decision seems surprising given the length of the relationship. However, what distinguishes this case is that the parties clearly kept their finances totally separate and did not consult each other at all in relation to financial matters. It should be noted that this is a decision of a Single Judge rather than the Full court. It is not known if the matter is being appealed. As ever, each case very much depends on its own facts. However, this case suggests that any previous assumptions that long relationships result in property adjustments in most cases may need to be reconsidered.
Same Sex Couples living in Australia
The Australian Social Trends (AST) report released by the Australian Bureau of Statistics (ABS) in July has looked at many of the characteristics of same-sex couples living in Australia.
Information from the latest Census shows 33,700 couples reported living together in a same-sex relationship, with 17,600 male couples and 16,100 female couples.
It was also noted that there were also almost twice as many children living in same-sex couple families as there were in 2001 – and most of these children were living in female same-sex couple families.
Other aspects of the report show:
- Housework is more evenly shared in same-sex couples, unlike opposite-sex couples where women tend to do more than men.
- People in same-sex couples tend to be younger than people in opposite sex couples, but they also tend to have a greater age gap between partners. It was found that with around a quarter of male same-sex couples there was an age difference of 10 or more years between the partners, compared with only 8 per cent for opposite-sex couples and for women in same-sex couples, 15 per cent had a similar age difference.
- People in same-sex couples tend to be more highly educated, with a Bachelor degree or higher qualification being almost double those in opposite-sex couples.
- They tend to have higher labour force participation, and higher incomes.
- Same Sex couples also move more often than other couples.
- Around two in five said they were Christian but most people in same-sex couples were also more likely to report having no religion.
You can read more about the AST article here
Kavanagh Family Lawyers consider it very fortunate to have many gay and lesbian clients and are proud to be part of the gay and lesbian community.
Kavanagh Lawyers are sensitive to the particular challenges that same sex couples face with regard to the legal aspects of their relationships. The emotional aspects of a separation are difficult enough without the possibility of having to endure insensitivity or lack of understanding about you and your relationship. Read more about what Kavanagh Family Lawyers can offer Same Sex Couples.