In Perth Family Law, same sex or LGBTQ children of same sex or LGBTQ parents have the same rights as all parents. In most cases parents will share parental responsibility.
Equal Shared Parental Responsibility
Section 61DA of the Family Law Act presumes that it is in the child’s best interests for parents to have equal shared parental responsibility.
This means that the parents would in most cases have equal say in relation to major long term issues including:
- the child’s education;
- the child’s health;
- the child’s religion and cultural upbringing;
- the names by which the child is ordinarily known; and
- any changes to the child’s living arrangements which make it significantly more difficult for the child to spend time with either parent.
It means that parents shall consult with one another about decisions to be made in the exercise of their equal shared parental responsibility. For instance;
- they shall inform the other parent about the decision to be made;
- they shall consult with each other on terms that they agree; and
- they shall make a genuine effort to come to a joint decision.
In some Family Law Cases a Court Expert may be appointed to help the Court in deciding on what parenting (custody) Orders should be made. This can happen in same sex or LGBTQ cases in the same way as it can in parenting cases. A Court Expert is a professional (such as a psychologist or psychiatrist) who has been appointed under the Family Law Rules (either by order of the Court or by agreement of the parties) to be involved in the proceedings and may be appointed in cases where there is a need to protect the child from physical or psychological harm from exposure to abuse, neglect or family violence. Same sex or LGBTQ parents should not be discriminated against. Their children ordinarily have the same rights as other children.
In Perth, same sex family law or LGBTQ family law is needed when considering what parenting orders or arrangements should be made the “best interests” of children needs to be considered.
Section 60CA of the Family Law Act states that the best interests of the child are the paramount consideration when deciding whether to make particular parenting orders.
Section 60CA states that the best interests of children are met by:
- ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
- protecting children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence;
- ensuring that children receive adequate and proper parenting to help them reach their full potential; and
- ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
The principles underlying the objects above are contained in section 60B(2) of the Family Law Act and state that (except when it is or would be contrary to a child’s best interests):
- children have a right to know and be cared for by both their parents;
- children have a right to spend time and communicate on a regular basis with both their parents and other people significant to their care, welfare and development;
- parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
- parents should agree about the future parenting of their children; and
- children have a right to enjoy their culture.
Section 60CC (1) of the Family Law Act outlines the mandatory criteria to be considered in determining what is in a child’s best interests. These considerations can be divided into the primary considerations and additional considerations.
Section 60CC(2) of the Family Law Act sets out the primary considerations:
- the benefit of the child having a meaningful relationship with both parents; and
- the need to protect the child from physical or psychological harm from exposure to abuse, neglect or family violence.