Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Hansard source

I move:

That the House of Representatives be requested to make the following amendment:

(53)  Page 108 (after line 17), after Schedule 3, insert:

Schedule 3AChildren

Family Law Act 1975

1 Subsection 4(1)

Insert:

child: Subdivision D of Division 1 of Part VII affects the situations in which a child is a child of a person or is a child of a marriage or other relationship.

Note:   In determining if a child is the child of a person within the meaning of this Act, it is to be assumed that Part VII extends to all States and Territories.

2 Before section 60F

Insert:

60EA Definition of de facto partner

                 For the purposes of this Subdivision, a person is the de facto partner of another person if:

             (a)    a relationship between the person and the other person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; or

             (b)    the person is in a de facto relationship with the other person.

3 Paragraph 60F(1)(c)

After “subsection 60H(1)”, insert “or section 60HB”.

4 After subsection 60F(4)

Insert:

     (4A)    To avoid doubt, for the purposes of this Act a child of a marriage is a child of the husband and of the wife in the marriage.

5 Subsection 60G(2)

After “paragraph 60F(4)(a)”, insert “, or paragraph 60HA(3)(a),”.

6 Subsection 60H(1)

Repeal the subsection, substitute:

        (1)    If:

             (a)    a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and

             (b)    either:

                   (i)    the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or

                  (ii)    under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;

then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:

             (c)    the child is the child of the woman and of the other intended parent; and

             (d)    if a person other than the woman and the other intended parent provided genetic material—the child is not the child of that person.

7 Subsection 60H(4)

Repeal the subsection.

8 At the end of Subdivision D of Division 1 of Part VII

Add:

60HA Children of de facto partners

        (1)    For the purposes of this Act, a child is the child of a person who has, or had, a de facto partner if:

             (a)    the child is a child of the person and the person’s de facto partner; or

             (b)    the child is adopted by the person and the person’s de facto partner or by either of them with the consent of the other; or

             (c)    the child is, under subsection 60H(1) or section 60HB, a child of the person and the person’s de facto partner.

This subsection has effect subject to subsection (2).

        (2)    A child of current or former de facto partners ceases to be a child of those partners for the purposes of this Act if the child is adopted by a person who, before the adoption, is not a prescribed adopting parent.

        (3)    The following provisions apply in relation to a child of current or former de facto partners who is adopted by a prescribed adopting parent:

             (a)    if a court granted leave under section 60G for the adoption proceedings to be commenced—the child ceases to be a child of those partners for the purposes of this Act;

             (b)    in any other case—the child continues to be a child of those partners for the purposes of this Act.

        (4)    In this section:

this Act includes:

             (a)    the standard Rules of Court; and

             (b)    the related Federal Magistrates Rules.

60HB Children born under surrogacy arrangements

        (1)    If a court has made an order under a prescribed law of a State or Territory to the effect that:

             (a)    a child is the child of one or more persons; or

             (b)    each of one or more persons is a parent of a child;

then, for the purposes of this Act, the child is the child of each of those persons.

        (2)    In this section:

this Act includes:

             (a)    the standard Rules of Court; and

             (b)    the related Federal Magistrates Rules.

9 Application

Application to children

(1)    Subject to subitems (2) to (8), the amendments made by this Schedule apply in relation to a child born before, on or after the commencement of this item.

Application to the Aged Care Act 1997

(2)    To the extent that the amendments of the Family Law Act 1975 made by this Schedule affect subparagraph 44-11(2)(a)(i) of the Aged Care Act 1997, they apply in relation to that subparagraph on and after 1 July 2009.

Application to the A New Tax System (Family Assistance) Act 1999

(3)    To the extent that the amendments of the Family Law Act 1975 made by this Schedule affect paragraph 22(2)(b) of the A New Tax System (Family Assistance) Act 1999, they apply in relation to that paragraph on and after 1 July 2009.

Application to the Child Support (Assessment) Act 1989

(4)    To the extent that the amendment of subsection 60H(1), and the repeal of subsection 60H(4), of the Family Law Act 1975 made by this Schedule affect paragraph (b) of the definition of parent in subsection 5(1) of the Child Support (Assessment) Act 1989, they apply in relation to that paragraph on and after 1 July 2009.

Application to the Child Support (Registration and Collection) Act 1988

(5)    To the extent that the amendment of paragraph 60F(1)(c) of the Family Law Act 1975 made by this Schedule affects the definition of child of a marriage in subsection 4(1) of the Child Support (Registration and Collection) Act 1988, it applies in relation to that definition on and after 1 July 2009.

Application to the Health Insurance Act 1973

(6)    To the extent that the amendments of the Family Law Act 1975 made by this Schedule affect paragraph (a) of the definition of dependent child in subsection 10AA(7) of the Health Insurance Act 1973, they apply in relation to that paragraph on and after 1 January 2009.

Application to the National Health Act 1953

(7)    To the extent that the amendments of the Family Law Act 1975 made by this Schedule affect paragraph 84(4)(b), and paragraph (a) of the definition of dependent child in subsection 84B(4), of the National Health Act 1953, they apply in relation to those paragraphs on and after 1 January 2009.

Application to the Social Security Act 1991

(8)    To the extent that the amendments of the Family Law Act 1975 made by this Schedule affect paragraph 5(2)(a), subparagraph (b)(i) of point 1067G-B3AA, subparagraph (b)(i) of subpoint 1067G-G9(2) and subparagraph (a)(i) of point 1068-B1B of the Social Security Act 1991, they apply in relation to those provisions on and after 1 July 2009.

Government amendment (53) inserts a new section setting out the rules for determining when a child is a child of a person who has or had a de facto partner. The proposed amendment provides that a person is a de facto partner either when they are one of a couple registered under a prescribed law of a state or territory or they are in a de facto relationship with another person. Government amendment (53) also substitutes a new section 60H(1), which would apply where a child is born as a result of artificial conception procedures to a married couple or to current or former de facto partners who are of the same sex or different sexes. The expanded operation of the provisions would mean that a female same-sex de facto couple would be recognised as the parents of a child born where the couple consented to the artificial conception procedure relating to the birth of the child. In other words, the child would be recognised as the child of the woman giving birth and her de facto partner.

In addition, genetic material from other than the couple must be used with the relevant donor’s consent. Subsection 60H(1) now only requires the consent of the couple undergoing the procedure; it is silent as to the consent of any donors. The requirement that the donor consent is considered a necessary safeguard to ensure that genetic material is not used without the knowledge of the donor. Consent is seen as the fundamental principle in the regulation of conception procedures.

Turning to the issue of children born under surrogacy arrangements, new section 60HB is proposed to deal with children born under surrogacy arrangements regulated by state and territory laws. It provides that, where a court order has been made under a prescribed law of a state or territory relating to the parentage of a child, that court order will determine the parentage of the child. Where a surrogacy arrangement is involved, opposite-sex married or de facto couples and female or male same-sex de facto couples will be recognised as the parents of a child if there is a state or territory court order transferring parentage to them.

Dealing with the issue of children born before or after commencement, the amendments in new schedule 3A apply to children born before, on or after commencement so that the greatest possible number of children benefit from the changes. It is considered that for Family Law Act purposes all children of same-sex couples who would be recognised under the new provisions should be provided with benefits such as their same-sex parents being able to access the Family Court and having two parents recognised by the act.

The amendments in new schedule 3A commence on royal assent and apply to children born before, on or after commencement so that, as I said, the greatest possible number of children benefit from the changes. However, parentage presumptions in the Family Law Act are already applied by a number of acts relating to social security, child support and health. Some of these acts are also being amended by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008. It is necessary to align the application of the amendments in new schedule 3A with the commencement of the amendments to those acts by the same-sex general law reform bill. In most cases, the amendments in new schedule 3A will apply to these other acts on and after 1 July 2009. For the Health Insurance Act 1973 and the National Health Act 1953, they will apply on and after 1 January 2009. Of course, the purpose of that is to ensure the smooth implementation of the government’s wider same-sex reforms. Additionally, this will provide time for agencies to train their staff, to amend forms or procedures and to introduce new software or other technologies.

I also thank the Attorney-General, from a service delivery perspective, for providing some time for the agencies that I administer, which include Centrelink and Medicare, to look at these issues to ensure that our procedures and forms are appropriate for the legislative requirements and that our staff are trained to follow the legislative requirements. With all of these things it is helpful to be provided with sufficient lead time for that to occur. Given the complexity of some of this legislation, that will allow time to write guidelines and procedures for staff to follow. It will also allow time for individuals who may be affected by these changes to adjust. We cannot lose sight of the fact that there are individuals who will be affected by this legislation who will want to understand the implications that are contained within it, and we should allow time for them to digest the legislation and for their adjustment processes. With that, I commend the government’s request to the chamber.

I also seek to table the supplementary explanatory memoranda, which I failed to do at the commencement of the committee stage. I was just going to see whether or not the opposition have had an opportunity of looking at the supplementary explanatory memorandum.