Mcphee Lawyers


22 October 2014

Do biological parents have the upper hand in a same sex parenting dispute?


In short the answer is no.  The family Court has stated on a number of occasions that there is no presumption in favour of a biological parent.

Most children born to (and adopted by) same-sex couples are now legally recognised as the children of both same-sex parents when it comes to family law and child support. This includes: –

  • Children born through assisted or artificial conception to lesbian couples;
  • Children born under altruistic surrogacy arrangements; and
  • Children adopted by same-sex couples.

Non-biological parents can now apply to the Court for parenting orders as parents in their own right as opposed to being forced to apply as ‘a person concerned with the care, welfare or development of a child’.

Same-sex relationships are included in the definitions of ‘de-facto partner,’ ‘child,’ ‘parent,’ ‘couple,’ and ‘family.’

When considering a parenting dispute the best interests of the child remains the main consideration for the Family Court when deciding what orders to make. The gender of the child’s parents are not considerations save so far as gender is relevant to S60CC(3)(g) of the Family Law Act. Similarly the circumstances surrounding conception of the child are unlikely to be relevant in a determination of best interests.

If you need more information or assistance in dealing with a same sex parenting dispute contact one of our family law specialists.  

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