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Same-Sex Parents Who Separate: Who gets the child?

Same-Sex Parents Who Separate: Who gets the child?. The law simplified. Law Reform Timeline. Development of Same-Sex Relationship Recognition. 2008 AHRC’s report Same-Sex: Same entitlements – recommended amending federal laws that discriminated against same-sex couples and their children.

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Same-Sex Parents Who Separate: Who gets the child?

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  1. Same-Sex Parents Who Separate: Who gets the child? The law simplified

  2. Law Reform Timeline Development of Same-Sex Relationship Recognition 2008 AHRC’s report Same-Sex: Same entitlements – recommended amending federal laws that discriminated against same-sex couples and their children Same-Sex Relationships (Equal reatment in Commonwealth Laws – General Law Reform) Act 2008 (Cth) – amended over 85 laws to extend definitions to include ‘same-sex’ couples and parents Family Law Amendmenet (De Facto Financial Matters and Other Measures) Act 2008 (Cth) – property and maintenance matters for separating same-sex couples are now determined by the Fam Court or FCCC Marriage Amendment Act (Cth) passed – reaffirmed ‘union of a man and a woman’ Marriage Act 1961(Cth) – Same-Sex Couples NOT recognised Netherlands became 1st country to recognise same-sex relationships. Belgium, Spain and Canada have followed. States followed with amendments 2008 1975 2001 2004 2006 2012 1961 In the past, Parents sought ‘custody and control’ over their children, enforcing their parental rights Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) – new provisions to fix conflicts between best interest of child and the child’s meaningful relationship with parents Family Law Act 1975 (Cth) Family Law Amendments (Shared Parental Responsibility) Act 2006 (Cth) – introduced 2 types of considerations now focused on best interest of child Changing Nature of Child Custody and Parental Responsibility

  3. Court Considerations • No presumption in favour of biological parent over the non-biological parent • To whom the child lives with and spends time with depends on what the best interests of the child are • To determine this, there are primary and additional considerations as well as presumptions

  4. Best Interest of the Child • Primary Considerations: • meaningful relationship with both parents • Protection from harm being exposed to abuse, neglect or family violence

  5. Best Interest of the Child 2. Additional considerations: • The child’s wishes • The nature of the relationship between the child and the parents • The financial ability of the parent to care for the child • The ability of the parent to provide for intellectual and emotional needs of the child • The level of connection between the parents.

  6. Presumption of Shared Responsibility • This means the Court will presume that it is in the best interests of the child for parents to have equal shared responsibility for the child • Does not apply: where there is family violence and child abuse • Rebutted: if shown it is not best interest of the child • Other considerations: if it is “reasonable practicable” to have this order.

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