Parents in same sex couples

Are you a parent of a child from a same–sex relationship?

If you are a parent and have children from a previous same–sex relationship, you may be able to apply for child support from 1 July 2009.

Legislation

In November 2008, the Australian Government made major changes to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 and the Same–Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 to remove discrimination against same–sex couples in most Commonwealth laws. These changes take effect from 1 July 2009.

What does this mean for same–sex couples?

From 1 July 2009, same–sex couples will be recognised in all financial matters in areas such as Centrelink benefits, taxation, Medicare, Veterans' Affairs, workers’ compensation, educational assistance, superannuation, family law and child support. For more information please visit the Attorney–General’s website.

Changes to the Child Support (Assessment) Act 1989 and Child Support (Registration & Collection) Act 1988 will recognise the new parentage laws for same–sex couples.

From 1 July 2009, same–sex couples can apply for child support when they separate, if they are recognised as parents under the Family Law Act 1975 (the Family Law Act).

Spousal Maintenance Orders

The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 comes into effect 1 March 2009.

This Act means that de facto couples (regardless of sex) will be able to obtain a Spousal Maintenance Order and register that order with the Child Support Agency (CSA). Previously, as part of the Family Law Act, only married couples were able to do this.

The broader law reforms for same–sex couples (Same–Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008) will come into effect from 1 July 2009.

Child support applications

Applications for child support from same–sex couples can only be accepted from 1 July 2009 onwards, but couples who lived in a de facto relationship and separated prior to this date can still apply.

See below for how the CSA is satisfied about who is a parent of a child.

How to apply

You will need to contact the CSA either by phone 131 272 or by visiting the website.

You can choose to:

* Please note, that if a parent is receiving more than the base rate of Family Tax Benefit Part A, they may be required to have a child support assessment from CSA. Any child support payments received may affect the amount of Family Tax Benefit a parent can be paid.

Parentage

Same–sex couples will be recognised as parents where they meet the requirements of sections 60H and 60HB of the Family Law Act – where a child is born through an assisted conception procedure, following an approved surrogacy arrangement, or where the child has been adopted by the couple, or the non–biological parent.

Assisted conception

Under section 60H of the Family Law Act, a person is recognised as the parent of a child where:

This will now also apply to women in same–sex de facto couples who have children as a couple, together through an assisted conception procedure. Both the birth mother and her partner, the non–birth mother, will now be regarded as the legal parents of the child.

Surrogacy

Under section 60HB of the Family Law Act, people (including same–sex parents) who are recognised under a surrogacy parentage order made under State or Territory law as parents to a child are also recognised as parents of that child for child support and family law purposes.

This currently only includes individuals or couples who are recognised as parents under a ‘parentage order’ issued by the ACT Supreme Court.

The Victorian Government has recently passed a surrogacy scheme under the Assisted Reproductive Treatment Act 2008 (Vic). As the Victorian Act has not yet received royal assent (as at May 2009) about which section 60HB of the FLA applies, substitute parentage orders made under that Act are not yet recognised under the Family Law Act.

Surrogacy arrangements can only be recognised for child support purposes where a State or Territory court has made an order naming the parents.

Adoption

People in a same–sex relationship are recognised as parents of a child when they legally adopt that child. This includes where one parent is the biological parent and the other parent adopts the child, or where both parents adopt the child together.

Same–sex couple adoption is available in WA and the ACT, and in limited circumstances, in Tasmania. This is not a change for child support purposes. The CSA has always been able to accept applications from adoptive parents from these states regardless of the sex of the parents.

Definitions

The Australian Government introduced reforms to remove discrimination to enable same–sex couples and their children to be recognised in Commonwealth law. Part of this process has been a change to the legislation relating to the way a parent and a step–parent is defined.

The definitions are listed below:

Parent

The definition of parent in child support legislation was amended along with changes to the Family Law Act to extend the range of persons who can be considered a parent of a child for child support purposes to include:

Step–parent

The definition of ‘step–parent’ in the Family Law Act was amended to remove its discriminatory effects in relation to ‘step–parents’ who are or were a de facto partner of a parent of a child.

Previously, the definition of ‘step–parent’ in the Family Law Act was limited to persons who are a step–parent of a child because they are or were married to a parent of a child.

This expanded definition gives greater significance to the relationship between de facto ‘step–parents’ and a child in proceedings under the Family Law Act for:

These orders may be recognised for child support purposes. For example an order for payment of child maintenance by a step parent may be registered for collection by the Child Support Agency.

Privacy and confidentiality

The CSA is dedicated to ensuring the privacy and confidentiality of its customers.

The information requested by the CSA is required for child support purposes and by child support law. We don't pass your personal information on to the other parent, unless this is required by law or necessary to make a decision that would affect the other parent. At no time would we provide a parent with the other party's contact details.

Some information may be passed to Centrelink, the Australian Taxation Office, the Family Assistance Office or the Social Security Appeals Tribunal. The CSA may provide your contact details to people contracted by us to deliver services to separated parents or to carry out research to help improve our services. You are not obliged to participate in any programs or research.

Our guidelines on privacy are in accordance with the Privacy Act 1988. For more information about how we treat your personal information, see the Guide on the CSA's website at www.csa.gov.au. For more information about the Privacy Act and privacy generally, see the Privacy Commissioner's website at www.privacy.gov.au.

Complaints

The CSA is dedicated to providing a high level of customer service to all customers.

However, if you feel that you have been adversely treated by a member of staff at the CSA you are able to contact CSA Complaints on 132 919 or lodge a complaint at our website www.csa.gov.au.

Useful links

Centrelink – http://www.centrelink.gov.au

Attorney Generals – http://www.ag.gov.au/www/agd/agd.nsf

Community Services Directory – This directory provides information on organisations in the community which provide services to assist parents on a wide range of family related issues.

Fact sheet: same–sex couples

State based legislation:

If you would like more information on state based parentage laws visit the Austlii website.

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