How parenting arrangements will be impacted by a decision to legalise same–sex marriages

Last week, we gave you a broad overview of the impact (or otherwise) legalising same sex marriage would have on our current family law system.

The purpose of this blog is to consider the impact the outcome of the postal votes may have on parents entering into agreements or Orders regarding children’s matters.

The Current Debate

As with any debate, there are currently two opposing views:

• the “No” campaign is based on the concept that marriage should remain between a Husband and Wife, children should be raised by a Mother and Father and should be protected from being bullied by their peers due to being raised in a different environment;

• the “Yes” campaign is based on same sex couples being allowed to marry if they chose, have the same rights as heterosexual couples, raise children and strengthen their family unit.

Regardless of the reasons behind each campaign, it is up to each individual to form their own views, beliefs and decisions on this topic.
To help you make an informed decision, below is a summary of the impact legalizing same sex marriages will have on parenting agreements and Orders.

Parental Responsibility

Currently each parent of a child who is under 18 years of age has parental responsibility at law unless otherwise ordered by the Court. This means that parents have duties, responsibilities and powers at law to make decisions for their child. Decisions would typically include enrolling a child in a particular school, determining whether your child will be religious and making decisions about your child’s health and wellbeing.

Same sex couples already have the ability to apply to the Court for parenting Orders and parental responsibility. Therefore currently a person’s marital status has no impact on the Court’s decision about such matters. This is not likely to change.

In terms of adoption and artificial conception, same sex couples can already be classed as the legal parents of a child and are able to be named on the birth certificate. This means, that there will be very little (if any) impact on adoption or artificial conception.

The Question of what is in a Child’s Best Interests

The marital status of a person seeking parenting Orders for a child is irrelevant in terms of the Court’s discretion. What is and will remain the paramount consideration for the Court is what is in each child’s best interest and whether they are safe.

To determine what is in the child’s best interests, the Court looks at a number of factors such as:

• the benefits of a child having a meaningful relationship with both its parents;
• protecting the child from abuse, neglect or psychological harm (this is of course given greatest weight);
• any views expressed by a child deemed mature enough to give an opinion;
• the involvement each parent has had with the child and their upbringing;
• the relationship the child has with extended family and siblings.

So whatever your views in this debate, when it comes to parenting Orders it is important to understand that the Court will always have a primary focus on the best interests of the child and ensuring that child is safe.

If you would like to know more about Parenting Orders, please contact our experienced Family Lawyers on (07) 3870 8244.

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