child support and custody issues continue to be complex for same-sex parents
unlike child support and child custody disputes, divorce will not be a family law issue for same-sex couples in australia in the near future.
A high court ruling struck down a same-sex marriage law that was enacted in the Australian Capital Territory. The ACT “marriage equality” law was the first in Australia to authorize same sex marriage. The high court ruled that the ACT law was inconsistent with the federal Marriage Act, which defines marriage as “the union of a man and a woman to the exclusion of all others.”
The ACT law took effect on September 7, 2013. The several dozen marriages that were performed pursuant to that law are effectively nullified by the high court’s unanimous ruling.
The high court concluded that the Marriage Act is a comprehensive regulation of marriage in Australia, and that ACT was foreclosed from enacting legislation within the same domain as the federal law. The high court made clear that its ruling is based on the Marriage Act’s preemption of ACT’s attempt to redefine marriage, and that the constitution does not prohibit the commonwealth from authorizing same-sex marriages.
Supporters of same-sex marriage may turn their attention to legislative efforts to change the Marriage Act. Although a 2012 poll found that 64 percent of Australians support same sex marriage, the federal parliament rejected a same-sex marriage bill in 2012 and Prime Minister Tony Abbott is on record as opposing it. On the other hand, Kevin Rudd recently announced his support for same-sex marriage, an opinion he says he formed in response to studies showing that children are not harmed by same-sex parenting. The Greens will use the high court ruling as the impetus for a renewed attempt to amend the Marriage Act to allow same-sex marriage.
According to the Australian Bureau of Statistics, the 2011 Census counted 33,700 same-sex couples. About 6,300 children were living with same-sex couples. Although the Marriage Act forbids them from getting married, same-sex couples in New South Wales, Western Australia, and the Australian Capital Territory are permitted to adopt, while same-sex couples in Tasmania may adopt if they already know the child.
The breakup of a same-sex couple with an adopted child presents many of the same legal issues that face divorcing parents, including determinations of child custody, visitation, and payment of child support. As the Australian Human Rights Commission explains, laws governing the children of same-sex couples are complex and evolving. Parental rights of unmarried couples (including same-sex couples) depend upon whether one member of the couple is the birth mother or birth father, whether one or both have adopted the child, and whether one or both is “significant to the care, welfare, or development of the child.”
In the absence of same-sex marriage, however, a person who is significant to the child is treated differently than a birth parent or adoptive parent. These issues will continue to pose difficulties for courts and for same-sex couples in the absence of comprehensive legislation that addresses same-sex parenting.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.