Doug PollardTranscript - Kristina Antoniades on the law for gay dads
DOUG: Kristina Antoniades now joins us on the line. Good morning, Kristina.
KRISTINA: Good morning, Doug. It’s good to be back.
DOUG: Yes – well, we had to leave you standing by the side of the road so to speak, while we were doing the election.
DOUG: But one topic that has come up while you’ve been away and again this morning is this whole issue about gay fathers - - -
KRISTINA: Yes - - -
DOUG: - - - and their somewhat dubious legal position. Can you summarise that for us?
KRISTINA: - - - I’ve been approached by gay dads in Victoria to essentially, just provide some insight into the position as it stands today and unfortunately the amendments to the Family Law Act have been very much focused on lesbian parents. So, two women who are in a relationship. Who decide to have – whether it’s a know donor or an unknown donor and conceive a child. There’s nowhere under the Family Law Act that provides for the interests of the donor. So, whether or not the mothers want the donor to be anonymous or whether they want them to be known to the child the father’s rights aren’t protected. Now, it gets a bit murky and the problem is that obviously you’ve got so many different situations when it comes to parenting children. Some donors want to be known to the children and then there’s an agreement they will play a part in their life but the problem is that the law at the moment completely alienates them.
DOUG: Yeah – so, they may have an informal agreement - - -
KRISTINA: Yes.
DOUG: - - - supposing they’ve provided sperm for two women to have a child, they may have an informal agreement that they will - - -
KRISTINA: Exactly.
DOUG: Have a relationship with that child but the mothers can basically sever it any time they like.
KRISTINA: Exactly right and what was found it’s not only affecting the gay community, it’s actually affecting the heterosexual community because where there isn’t any state legislation governing that arrangement it then falls back to the Family Law Act and even in situations – one particular one last year where it went to court was that there was a surrogacy arrangement and a mother and father provided their eggs and their sperm, to inseminate a child. It was ordered by the Court that they weren’t the parents of this child, in New South Wales and it was just absolutely gut wrenching for the parents because, obviously, that was the whole arrangement. That’s what you’re going to see with gay men who want to have a child and especially in New South Wales they’ve got no rights at all. The parent can keep – sorry, the surrogate, can keep the child. It’s just devastating.
DOUG: Now, that’s bizarre.
KRISTINA: It is.
DOUG: That’s a bizarre situation. But now, supposing we’re in a situation – let’s take another situation and see how it impacts, let’s take a situation where it’s a heterosexual couple – or a nominally heterosexual couple who have children and then they’ve separated.
KRISTINA: Yes.
DOUG: (and)Subsequently, the wife re-marries - - -
KRISTINA: M’mm, m’mm.
DOUG: - - - and the husband takes up with a same-sex partner. Usually in these situations if it’s amicable the original husband and wife can work out a shared parenting arrangement.
KRISTINA: Exactly, yes.
DOUG: What are the rights of her new husband vis-à-vis the rights of his new husband when this change takes place?
KRISTINA: Look, they’re exactly the same. They’re exactly the same – so, the heterosexual husband won’t have any more rights than he(sic) does for the child.
DOUG: Right.
KRISTINA: (and)He would still be deemed the parent of that child. The issue the law isn’t covering at the moment is when two men want to start a family. So, what the legislative - - -
DOUG: But that seems to me also, to be a gap in the law then because - - -
KRISTINA: - - - a huge gap.
DOUG: M’mm, because I would assume that new husband on both sides is probably going to want to have some kind of input into the child’s upbringing and yet they have no legal rights.
KRISTINA: No. They don’t, the only way they can is to get an Order of the Court which is unlikely in circumstances where the biological father’s still playing a role. It gets even messier, if the parties are married for – say, 15-years and they’ve brought-up this child from – say, two years of age - well let’s not say 15, let’s say five or ten.
They would have to apply to the Court to just be able to see the child. It’s unlikely the Court would say: well, okay you but you can also have parental responsibilities. All they would be seeing, in the Court’s eyes is a significant person who is concerned about the child’s welfare and nothing more; so, the legislation is very limiting in terms of gay parents especially. Because the amendments only protect lesbian women and in co-parenting arrangements which is so common, let’s face it – these days - - -
DOUG: M’mm.
KRISTINA: You’ve got a gay couple and a lesbian couple who want to have a child. The gay couple have(sic) no legal rights and there’s no legislation that covers this. So, there’s a big gap in the law and that’s essentially what I’m doing with gay dads, I’m drafting submissions to Parliament and doing an issues paper to identify where in the law that needs to be amended. Because it’s just really, really sad at the moment. You’ve got people – gay men – going overseas - - -
DOUG: M’mm, m’mm.
KRISTINA: - - - surrogacy arrangements over there. But then you(sic) face immigration issues bringing the child back in to the country. So, it’s just so complex and – you know, if a surrogate mother doesn’t want to give-up a child they don’t have to give-up a child, that’s not their child - - -
DOUG: Yes.
KRISTINA: So – yeah, it’s really sad that even though we’re at a point where there’s(sic) been so many changes in the law we’re still not at a point where we can acknowledge gay men as parents of a child.
DOUG: What about adoption, how does that work?
KRISTINA: Adoption is very difficult and only in Western Australia are two gay men able to adopt a child so all the other states limit it to being heterosexual couples and even then, you need leave of the Family Court. In order to make an application to the Supreme Court to go through the adoption process.
DOUG: But one, single man could - - -
KRISTINA: M’mm, m’mm.
DOUG: - - - adopt - - -
KRISTINA: Yes.
DOUG: But just not a couple.
KRISTINA: Exactly.
DOUG: That’s another piece of oddity there, isn’t - - -
KRISTINA: Huge – I mean, you’ll have the biological father that will be able to adopt the child but his partner won’t be able to and – I mean, where the gay dads are coming from is ‘my child calls me a parent why doesn’t the law’ and that just sums it up, in a nutshell.
DOUG: It does. M’mm, now – there’s moves afoot, I think to – I was talking to Felicity Marlowe last week, to change the adoption law here in Victoria - - -
KRISTINA: Yes.
DOUG: Because that was something that was not dealt with after the last enquiry. There were recommendations made but nothing done about them.
KRISTINA: Yes.
DOUG: Does that also include looking at rights for gay male couples?
KRISTINA: It does, it does and – m’mm, Felicity has been speaking with gay dads as well and I think, even though there’s been a push obviously toward the adoption-side of things everything else as well – surrogacy, co-parenting also need to be addressed and the legislation really needs to keep up with the times. It’s just not. I obviously, advise a lot of clients that are going through a co-parenting arrangement and when I have two men coming in saying ‘we’re co-parents’ it’s – like, exciting, ‘we’ve got this agreement’ the first thing I say to them is (a) it’s not legally binding, (b) the best you’re going to do is get a Court Order saying that you’re concerned with the child’s welfare - - -
DOUG: M’mm.
KRISTINA: - - - but you will never be legally a parent of this child so it’s actually really sad - - -
DOUG: That could be really awkward because supposing the partner who is recognised as a parent, dies?
KRISTINA: M’mm.
DOUG: What kind of position then does that leave the non-parent partner?
KRISTINA: It goes to next-of-kin, the child goes to – yeah, the next-of-kin. He would have no legal right to the child. He has to apply to a Court - - -
DOUG: So, even if that child has been brought-up to consider this man one of his fathers - - -
KRISTINA: M’mm.
DOUG: - - - he could be taken away?
KRISTINA: Look, it would depend on the circumstances. But he would have to – yeah, it can be taken away because he’s not legally a father. The best as I said, he would do is for a Court to say ‘well, you’ve played a role in this child’s life so we’ll allow you to have more time’, ‘you’re concerned with the child’s welfare so that gets you over the line - - -’
DOUG: M’mm.
KRISTINA: ‘- - - but legally you’re not a father’ so he’ll never be able to decide which school the child goes to, the religion of the child, of medical procedures, everything – he’ll be alienated from unless obviously, the Court – the biological mother consents to him playing a role. But at the moment lesbian women have the upper hand, we’ve got complete control over whether or not we want a donor in the child’s life and even if there’s an Agreement saying that the other parents, the donor, will play a major role in the child’s life it’s not binding. If that person, if the biological father never meets the child he’s not going to establish a bond and therefore, he won’t get over the threshold of proving to a Court that he’s someone concerned with the welfare of the child. It’s very sad.
DOUG: People find the idea of a mother, child bond very easy to think about.
KRISTINA: Yes.
DOUG: There’s this whole stuff – well, it comes naturally to women, kind of thing – m’mm, the idea of the father, child bond I think is probably valued less in our Society?
KRISTINA: Look, I’d agree. I’d agree and it comes across in a lot of judgments and we just see it as a child needs a mother – we even have, you know – some family consultants that make it very clear – and even in heterosexual relationships - - -
DOUG: Yeah.
KRISTINA: - - - saying, well, no the mother, child bond is very important and you can’t break that up at an early stage. Look, I’m not a psychologist but I think the father, they play a – you know, I just look back at the parent my father was to me and it plays a massive role. Played a massive role in my life growing up. So, look – I just think that we’re so far behind in terms of gay fathers’ rights that it’s bordering on being unjust – like, it’s awful. I’m appalled by it.
DOUG: Well, all power to your elbow – keep working at it, there - - -
KRISTINA: (and)Can I also just say, there is a conference for gay dads on the 18th and 19 September, that’s on at the Richmond Town Hall?
DOUG: Yes, you can and we’ve been running ads for it - - -
KRISTINA: Beautiful.
DOUG: - - - for the gay dads last week so - - -
KRISTINA: You’re all over it, no worries Doug – great speaking to you again.
DOUG: You, too. Thank you, Kristina and we’ll speak to you again next week.
KRISTINA: Not a problem.
DOUG: Take care. That was Kristina Antoniades there from Nichols Family Lawyers. Our resident legal eagle, who has been taking a bit of a break while we’ve been preoccupied with matters political.
