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Personally I think it is looking increasingly likely that a change in the marriage laws would be defeated in parliament. Despite wide spread support among the general public and a whole bunch of state labor party people lobbying for a big debate at the National conference in Sydney I think we will be offered the more politically pallatable option of getting civilly unioned.

 

So if the law is changed to allow civil unions would you want one? Would you get one? Why and why not?

 

Personally I don't want to get unioned, I want to get married. So in the absence of marriage would I get unioned? In principle no I wouldn't...but...yes there is a but and her name is Riley and she is 6 years old and at the moment her only legal tie to her non-biological mother is a parenting order that expires when she is 18.

 

If a civil union provided my partner with presumptive parenting rights for life then we would seriously have to consider the legal benefits to Riley and Jo in having a union. In which case I think we would treat it more like a legal contract than a celebration and affirmation of our love and committment and consign it to our lawyers office like all our other necessary legal activities.

 

Your thoughts?

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Comment by Melina MIchelle Magdalena on September 2, 2011 at 21:13

Hi Sophie,

Just think this "Centrelink for example does not recognise Jo as Riley's other mother except for the express purpose of assessing us for Family Assistance payments", which also applies to ME sucks so much... And I'm really interested by what you wrote about the donor dad being removed from someone birth certificate in order to allow the non birth mother to be on it. It wouldn't be our choice, but hopefully we now have a good enough relationship with our donor and his partner that if it did come to that, he would feel confident that we wouldn't be cutting him out of our life altogether, which was the reason he'd wanted to be on the birth certificate.

It's an interesting thing how robust yet delicate our relationships can be... and there's never going to be a one size fits all, is there! We wouldn't like to jeopardize the situation for families who want their donor to remain anonymous, either.

Comment by Sophie Pointer on September 2, 2011 at 14:25

Just a follow-up link for those interested in parental rights for same-sex couples in Australia:

 

http://www.hreoc.gov.au/human_rights/samesex/report/Ch_5.html
Comment by Sophie Pointer on September 2, 2011 at 9:45

Hi Bronwen, thanks for the information. I have to say I am still a little unsure about whether the changes to federal legislation had the effect of providing presumptive parenting as suggested by Camatta Lempens (have to say that we used Camatta Lempens and I was not exactly filled with confidence by them). The litmus test would be if you apply for a passport for Rowan and try to have both your names linked to it. Centrelink for example does not recognise Jo as Riley's other mother except for the express purpose of assessing us for Family Assistance payments.

The presumptive parenting issue is, as I understand it, a state based one. So not every state and territory has presumptive parenting laws....SA was the last state to grant it and sometime next year we will add my partner to the birth certificate. But as it is a state based law it will not cover Federal issues so as far as Federal law is concerned Riley still only has one parent for just about every Federal law about parenting rights and responsibilities. The parenting order that we have is a Federal order not a State one although the state does recognise it's validity.

It is interesting to hear that you put your donor on the birth certificate because one thing that was made very clear to us in the process of getting our parenting order was that a sperm donor, no matter what the intention the parties have in terms of being a Daddy, has ZERO legal relationship to the child conceived from that donation even if you include his name on the birth certificate. Recent case in NSW upheld that interpretation in law and a donor dad's name was removed by the court from a birth certificate, and in that case was replaced by the non-birth mother in accordance to NSW presumptive parenting laws. In our own dealings with the Family Court our donor Daddy was recognised as a 'person of interest' but acknowledge not to be the father under the law.

 

As you point out, the same-sex parenting inquiry came to the conclusion that there was no easy way around this. Recognising sperm donors is not something the states and territories will do as it messes with the surrogacy laws and puts at jeopardy every parental relationship where a child was conceived using anonymous sperm at an IVF clinic. 

 

There is a lot of confusion between state and federal law and I am still unsure exactly what rights non-birth mothers have at state and federal level. Sorry this turned out to be a bit of a rant....it is a confusing mess!

 

I think your conceptualisation of your relationship is fabulous! At the end of the day it shouldn't be about whether you believe in marriage as a construct or not (that's a different debate)...it should be about everybody having the same rights and responsibilities regardless of whether they are straight or gay.

Comment by Bronwen McClelland on September 1, 2011 at 21:23

hi there,

Sophie, we started looking into parenting orders just before Rowan was born (last year). The advice we got from Camatta Lampens was that due to changes in Federal Legislation, (I presume the same legislation that changed our centrelink status as of either July 2010 or 2009 - sorry to be so vague!), a child born to lesbian parents where the parents were in a relationship when the child was conceived would come under a "presumption of parentage' assumption. Thus, Melina is presumed to be the parent of Rowan because we were together when he was conceived. They didn't think that a parenting order would add anything to that.  Our situation is slightly different to yours, in that we did put our donor on the birth certificate, because he wanted that very much.  We will have a dilemma if/when the law changes to allow two women to be on the birth certificate, because of this - (we did suggest to the same sex parenting inquiry that there might need to be space for more than two parents, but they put that one in the too hard basket! Anyway, that's a separate issue)... 

In terms of unioning...  for me a ceremony of commitment /ritual was extremely important.  We didn't spend mountains of money, or wear big fluffy dresses (though mine was a nice swooshy one :-) ) but we had a lovely, meaningful picnic/party/celebration day with friends and family. We didn't have a celebrant and worked out the ritual bit ourselves - and revelled in the fact that we could do this without needing to ask permission from the state,church, synagogue or anyone - we could do it on our own terms, and that felt good.  We were very careful not to call it a "wedding", but everyone else did - and after the fact, we had to acknowledge that in every way other than the legal one, it did function as a wedding.  Now, I truly consider myself married - I just feel like I am, and it's only every so often (like when filling out the census form) I bump up against the fact that according to the law, I am not. 

So, if it did become legal, or if another form such as civil unions became available to us, I don't think I would want to do it, because I feel like it would invalidate what we have already done - like some kind of rubber stamp. And I reckon that getting legal sanction for our relationship wouldn't make any difference to our lives in any way that mattered. 

I feel conflicted about the whole push for same sex marriage. In some respects I think it is important just because we should have access to the same rights as straight people - and, like you Sonja, I think about the message our exclusion sends to our kids- that there is something wrong with our relationships. And, I also have friends for whom it is extremely distressing, and for whom a change in law would make a huge difference and allow them to have the wedding that they would love to have.  But, in the scheme of things, it's not the most urgent issue on my personal agenda...  

 I find it interesting that so many GLTBI people are so passionate about it - especially young people.  As a christian (note the small c), I find it weird that so many christians oppose it - given that one of their criticisms of our community is that we are supposedly "promiscuous" (like, all of us are... and like no straight people are either...!?) - then why are they so opposed to gay people promising to live in committed relationships??? 

hmmmm, many questions.  I'm enjoying these discussions,

thanks everyone!

Comment by Andre Stoffels on August 31, 2011 at 22:38

Hi Sophie.  I think you're right about the unlikelihood of the Marriage Act being changed.  The talk about Labor offering a conscience vote to its parliamentarians on this issue would, I believe, only be countenanced in the conservative elements of the Party because they believe it would mean any vote to change the definition of marriage would be lost.  Further, PM Gillard has indicated that she would go against Party policy if it changes in favour of same sex marriage.  So, I can't see a positive change coming up any time soon.  I am also worried that we are facing a period of increased conservatism (often this comes with times of financial uncertainty) and the GLBQTI community and other marginal groups may need to work to hold onto rights hard won rather than pursue new ones.  I hope my pessimism is unfounded and proves wrong but that's how things feel to me just now.

As to being unioned?  Well it's not something I'm likely to have to worry about but I know that if I had kids for which such decisions had an impact I would do all I could could to ensure they were  protected by the law in any way possible.  So if being unioned helped with that, then I would do it.  I would prefer not to accept a second rate situation because our love is equal to that of straights and ought to be recognised in the same way.  And I don't like the homophobic message that the current definition of marriage sends but sometimes you just have to do what you have to do.  This conflict between idealism and pragmatism is one that we shouldn't have to face but unfortunately it is looking as though that's how things may be for us.

Hopefully there is a chance good sense may yet prevail.  So while there is still hope let us do what we can to make change happen.

 

Comment by Kimby on August 31, 2011 at 20:55
On a purely personal level, I'm not a big fan of marriage. My partner and I are already committed to each other; I don't see much point in wasting a load of money at a wedding just for a piece of paper.
HOWEVER... we would really like to adopt, and in this state you need to be married to do so. So if a civil union afforded us the right to adopt, then yes, we would. Chances are it wouldn't, though.
Comment by Melina MIchelle Magdalena on August 31, 2011 at 13:17

Hi Sonja and Sophie (again) I'll ask Bronwen to explain the legalities around our situation.

Sonja - I was thinking along similar lines. When I first started trying to find a donor and have more children on my own it was very very very important for me to be in control of my situation. I didn't want to share anything, and mostly that was because of previous unpleasant and frightening experiences whilst parenting my older two children.

I really do feel quite secure in my relationship with Rowan now, whether or not that is enshrined in law. My experience has been that the Law has not really done anything for me in a whole range of situations, so I wouldn't expect my rights to be defended through Law now or in the future. I feel our day to day experience of living as a family is more real than the law.

And I regret the slipping away of the old 'family of choice' rhetoric (is that the right word?), because there is so much power in the choices we find ourselves making, in terms of who we incorporate into our families.

This was illustrated recently when we printed off a lot of photos to put into Rowan's book of his family. There are now photos not only of 'family members' but also people he sees regularly, and relates to as though they were family members. I think most people relate to the idea that it is often the case that people see non-family members more often than they see certain family members - especially if family members live far away.But what makes the family relationship more special than the non family relationship?

It bugs me, that my family structure seems to ape heteronormativity more than I'd like it to. But then I am peculiar that way. LOL

 

Comment by Rainbow Family Tree on August 31, 2011 at 11:20

Interesting debate! And one that my GF/missus/wife and I have had recently ; )

We got 'married' on Idaho day in Victoria Square with 18 other couples as a form of protest. In pondering the pros/cons of marriage versus civil unions versus recognition of our particular (and maybe peculiar?) family structure I've realised two things... I continue to protest for the right to marry because:

 

1) the lack of social acceptance of same sex marriage sends a powerful (and homophobic) message to our kids... ie we are not equal

2) we should have the same choice to marry (or not?) as everyone else...

 

Having said that I don't think we'll be choosing to get married or unioned in the near future because we quite love the way our family is and none of these models suit us right now...

We (GF and I) don't live under the same roof or share bills or major purchases. Lots of people contribute to parenting my kids, in different ways for different quantities of time (donor dad; GF; grandparents; fairy godparents; my big girl's father/my ex; childcare etc...). Some of these people have presumptive legal rights and most don't... and this causes me great concern every time I travel overseas.

 

Maybe things will change at some point in the future but for now... while happy to speak up in favour of same sex marriage (for the greater good!) I am a little saddened that acknowledgement and recognition of very diverse family structures (that're by no means restricted to queer community) has been lost in the debate. I think our family needs to celebrate and be proud of the way we hold our love together and the many conversations and compromises that make it happen!

 

Comment by Sophie Pointer on August 31, 2011 at 9:33

Hi Melina, that's interesting about the presumptive parenting advice you received as our legal advice is that in South Australia and at Commonwealth level there is no such thing other than for one specific Centrelink entitlement issue. Which is why we obtained a parenting order shortly after Riley was born. Without the parenting order we were not able to get a passport for Riley with both our names on it (i.e. Jo, non-birth mother, was not recognised as Riley's other parent), and technically, legally, Jo has no rights in terms of decision making around medical care for Riley or school enrolments without a parenting order.

 

We are still unsure what the change in state law around birth certificates listing non-birth mothers means in practical terms but we also know that state and federal laws will still differ around recognition of co-parents (e.g. the whole passport thing!).

 

If you could get the details around what sort of presumptive parenting applies in your case I would be really interested.

 

Cheers

Sophie

 

 

 

 

Comment by Melina MIchelle Magdalena on August 30, 2011 at 20:17

Hi Sophie, this one is fairly easy for me to answer, because it's something my partner and I have discussed before. We consider ourselves to be married and wouldn't choose to marry "legally" or get a civil union either, because it doesn't seem that this would add anything to our relationship or change the way we are viewed within our community.

What you say about the recognition of parenting roles and rights for our children certainly applies for us as well, but when Rowan was born we were told that there is already presumptive parenting and that getting a court order for this was unnecessary. (I can't recall all the legal jargon sorry, but can look it up if you're interested.) I think I will be presumed to be Rowan's mother for life.

Hope to hear from others, too.

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