FAMILY RELATIONSHIPS (PARENTAGE PRESUMPTIONS) AMENDMENT BILL

The Hon. T.A. FRANKS (17:08): Obtained leave and introduced a Bill for an act to amend the Family Relationships Act 1975. Read a first time.

Second Reading

The Hon. T.A. FRANKS (17:09): I move:

That this Bill be now read a second time.

This is a Bill that I bring before this place which in many ways addresses some of the issues of my previous bill that looked at the recognition of lesbian co-parents on the birth certificate of a child that a couple has conceived through artificial insemination. I note that that bill, when voted on in this place, had strong support, stronger than I expected. Indeed, I think it was recognition that these are children and families living in South Australia who deserve the protections that that particular bill and this bill today have both created and will increase.

Same sex headed families have certainly been the subject of a committee of inquiry. The Social Development Committee looked into it in great detail in previous years and reported back with a range of recommendations for law reform that I note have not been fully taken up. However, I welcome the words in the Address in Reply speech from Premier Weatherill that there will be a law review process this year and that we will see many issues of inequity addressed, be they on the basis of sexuality, sexual identity, gender identity or indeed gender. I look forward to that process. However, for some families that process will take too long. They are in the here and now and their rights are currently being impeded, and they are not able to be recognised under the law as the families that they are.

One particular family to which I have drawn this parliament’s attention—and I will be hosting them in the Watarru Room this evening—is the family of Tadhg. Young Tadhg was born on Mother’s Day last year. Sally’s partner Elise gave birth to a beautiful baby boy. However, when they went to register his birth they were shocked to have their forms returned by Births, Deaths and Marriages with a demand to prove that they had lived together for three years before they conceived; not the question of whether they were in a loving, committed relationship (which of course they are and continue to be), not even whether Sally had consented to the insemination procedure, just whether they had been cohabiting for three years.

 

Of course, members in this place who have spent much more time in this chamber than I have would know that that three-year provision is a relic of a particular South Australian approach with regard to the treatment of certain partnerships. In any other state Sally and Elise would not have been required to have lived together for those three years. Indeed, many of the families who have now been able to benefit from a second or third child having been conceived in their partnership still have the first child, who was not conceived after the couple had been together for three years, not recognised as part of that family. So, not only are we denying parentage but we are denying siblings.

Sally and Elise are and were in a de facto relationship. They owned a home together. They have a shared mortgage and they are known by their family and friends to be a couple, but because they had not lived together for three years this just was not enough. If they had been born anywhere else in Australia, they would have both mums on Tadhg’s birth certificate. In fact, opposite sex partners need not be in any form of prescribed relationship when they access assisted insemination via a donor. They can then register the resulting birth with the male partner’s name as the father without question. The biology or technology involved is not deemed to be important.

Sally and Elise have been campaigning online and have been attending events. On their Facebook page they are pictured with shadow minister Penny Wong, who has noted on that campaign page that she was only afforded the rights by a slim timeline; in fact, if she had not been together with her partner Sophie Allouache for as long as she had, they would not have had their child recognised with shadow minister Wong on the birth certificate.

It seems punitive to treat same-sex couples differently from other same-sex couples based on a criterion that does not exist in any other state. When a couple conceives a child together, that is recognition of a de facto relationship elsewhere. It is certainly adequate for the federal government’s processes, so it should be for the state government’s processes.

Unfortunately, although it would normally be a fortunate event, for Elise and Sally, their baby was conceived on their very first attempt. Had they been unsuccessful at first they would not have fallen foul of this law. Because they had not lived together long enough they have found themselves in the unenviable position where Sally is now not recognised as Tadhg’s parent at all. As the legally invisible parent, Sally cannot pass on her UK citizenship to Tadhg nor, when he gets older, sign school consent forms.

She cannot make medical treatment decisions for her son in an emergency or where Elise is either unreachable or also injured. Worse still, she would have to fight to keep custody of her own child if Elise were to die. Sally and Elise are now campaigning to have these changes made to the South Australian legislation; I am certainly happy to help them with that today. They have also lodged a complaint with the Human Rights Commission, and I note that that process is still in train. We will keep you updated, and I will provide further information on that particular complaint as it comes to hand.

Another couple who have contacted me with regard to supporting the Bill that I place before you today are Rosalie and Kylie. Rosalie and Kylie do not have children at all, so you might wonder why they would want to have the advantage of the removal of the three-year rule. Rosalie and Kylie have been together for a very long time, but as Christians they have waited to get married before they moved in and lived together. So, on 17 April this year they went and married in New Zealand and now they plan to start a family.
They wrote to me:
Unfortunately we had to get married in New Zealand rather than Australia. Not only have they legally achieved marriage equality, but there are many churches there who are supportive. It was really important to us that we have a Christian ceremony, as we have both been Christians our entire lives, as well as a fairly traditional ceremony. We have followed other traditions, such as not living with each other until after the wedding. This means that we won’t have been living with each other for three years when we want to start a family at the end of next year. It does not make sense to us that we won’t be able to be both on the birth certificate under the current legislation. We want to do everything we can to provide stability for our future children.

These are both children who are indicative of other children, who are very much wanted, very much loved but are not afforded the right of the recognition of both their parents. I will be hosting in the Watarru Room in the dinner break this evening some of the families who would like to see this legislation passed and not wait until the end of the year when we get back the report from the law reform review. It is a small change, a change that is a peculiarly South Australian phenomenon of requiring the three years criterion, and is something in this place we can do with informed debate, but certainly with some haste, because we have seen that this legislation is working well in practice.

It is a small issue that needs to be addressed and one that we have the capacity to debate and pass through this parliament to ensure that Tadhg, by the end of this year, has both mums on his birth certificate, and that Rosalie and Kylie, should they be lucky enough to conceive and have a child in coming years, also have that legal protection not just for themselves but for their child and their extended families. With that, I commend the bill to the council.

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