Family Law Case: Same-sex relationship and orders permitting two women to be name as the parents on the birth certificate
In a recent case published by the Federal Magistrates Court of Australia, Dent & Rees  FMCAfam 1303, two parents who had been in a same sex de facto relationship for 17 years were in a family law dispute. The parents could not agree on parenting orders and also in relation to the birth certificates of the children.
They had three children who were all conceived by an artificial conception procedure. One of the child was the applicant’s biological child and two of the children are the respondent’s biological children. The father of the children is same anonymous sperm donor, and pursuant to s.60H of the Family Law Act Ms Dent and Ms Rees are the parents of the children.
The law in force at the time the children were born did not allow both parents to be named on the children’s birth certificates and only the birth mother appears as a parent on each certificate.
All the children were all born prior to the amendments to the Births Deaths and Marriages Registration Act NSW. The amendments now permits two women who have a child in a relationship together to both be named as parents on the child’s birth certificate. The applicant mother in the case was not on the birth certificate of two of the children at the time of the hearing, and the respondent mother opposed the application.
The applicant mother sought an order that the children live primarily with her and the respondent mother was seeking a week about arrangement.
One of the three children has special needs and there was argument about whether one parent has a superior capacity to provide for the needs of that child. That child had been diagnosed with Delayed Speech, Aggression, Oppositional Defiant Disorder (ODD), Attention Deficit Hyperactivity Disorder (ADHD) and Aspergers.
Both mothers were provided equal shared parental responsibility for the children and parenting orders were made.
Further, and despite the respondent’s opposition and counsel’s submissions that the Court did not have the power, the Court disagreed and made orders permitting the applicant mother to apply to the Registrar of Births Deaths and Marriages for the State of New South Wales to request that her name be added to the birth certificates of the children as a parent (and also for the respondent to be added to the birth certificate of the child where she was not currently included as the mother).
Further orders were made such that the Registrar of Births, Deaths and Marriages for the State of New South Wales, upon such an application of the applicant mother, are to do all acts and things required to alter the particulars in the register for each child notwithstanding that the consent of the respondent mother has not been obtained.
Clause 17(14)(a) of Part Four of Schedule 3 of the Birth Deaths and Marriages Registration Act (NSW) provides that a women who is presumed to be a parent of a child can apply to the Registrar to have her name added to the birth certificate. The Registrar cannot make that addition unless the birth mother consents or there is a court order.
Under section 19(2) of the Births, Deaths and Marriages Registration Act 1995, if any court (including any court of another State or the Commonwealth) makes a finding about a birth or a child’s parents, the court may order registration of the birth or inclusion of registrable information about the birth or the parents in the Register.
Pursuant to section 60H of the Family Law Act Ms Dent and Ms Rees are the children’s parents and therefore this court has the power to make the order sought by Ms Dent. Section 19(2) provides that a court may make the order and the issue then is whether in the exercise of the Court’s discretion, the order should be made. The Federal Magistrate referred to the case of AA & BB:
AA & BB earlier referred to Judge Walmsley SC referred to the second reading speech for the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 and said as follows:
A key motivation for the government in enacting these new parenting presumptions is to ensure that lesbian same-sex parents can take parental responsibility for their children with respect to their health, education and general well-being in the same way as we expect all other parents to. Accordingly, the bill makes consequential amendments to the Births, Deaths and Marriages Registration Act 1995 to ensure that both parents can be noted on the child’s birth certificate. This is an important measure, as it will enable both parents of a child conceived as a result of a fertilisation procedure provided to those in the lesbian same-sex de facto relationship to hold themselves out as the child’s parents in circumstances where evidence of the parent-child relationship is demanded by our state’s public institutions, such as hospitals and schools. It will also enable same-sex parents to engage with other authorities, such as sporting registration bodies, so often encountered by parents in the course of bringing up children.
AA v Registrar of Births Deaths and Marriages and BB  NSWDC 100