Family Relationships (Parentage Presumptions) Amendment Bill

Second Reading

Mr PISONI (Unley) (11:10): I move:

That this bill be now read a second time.

The Family Relationships (Parentage Presumptions) Amendment Bill was introduced in the other place on 25 March this year by the Hon. Tammy Franks MLC. It was passed in the other place on 3 June. I move it today because I support the bill and its sentiments. It has been over six months since the bill was first introduced and four months since it passed the other place. In that time, much has been said about the advancement of the rights of same-sex attracted people in this state, but little of substance has passed our parliament to continue the work of achieving equality in areas of sexuality and gender identity.

I was very pleased to participate in the motion that commemorated the 40 years of decriminalisation of homosexual activity here in South Australia. I was also very pleased to attend the Adelaide University function that unveiled a memorial to Dr George Duncan, who was a victim of a hate crime against homosexuals back in 1972.

In that time, young Tadgh had his first birthday, and I will be telling the story of young Tadgh, who has no birth certificate. Sally's partner, Elise, gave birth to a beautiful baby boy, but when they went to register his birth, they were shocked to have their forms returned by Births, Deaths and Marriages with a demand for them to prove that they had lived together for three years before they conceived. They were not asked whether they were in a loving, committed relationship, which they were and continue to be, or even whether Sally had consented to the insemination procedure. They were only required to prove whether there had been cohabitation for three years.

Of course, members in this place who have been here for some time would know that the three-year provision is a relic of a particular South Australian approach with regard to the treatment of certain partnerships. In other states, Sally and Elise would not have been required to live together for those three years. South Australia is the only state that has this requirement for same-sex couples. Indeed, many of the families who have now conceived a second or third child in their partnership still have the issue of the non-biological parent still not being recognised with respect to their first child who had been conceived before that three-year period.

Sally and Elise were in a de facto relationship when Tadgh was born and they still are. They own 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 before Tadgh was conceived, that was deemed not to be enough.

If Tadgh had been born anywhere else in Australia, both mums would have been registered on Tadgh'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 and technology involved is not deemed to be important.

In other words, in the case of a couple from a heterosexual relationship, there is no need to prove that the relationship is three years old and, of course, a marriage does mean that those people are in fact in a committed relationship. Of course, same-sex couples are not able to be married in this country or have a marriage that was conducted in, for example, New Zealand recognised here in Australia, which makes this amendment to the bill even more important.

This is, of course, a conscience vote in the Liberal Party. From the debate in the other place, I understand it is a conscience vote for the government, and I note that all Labor members in the other place voted for this bill. It was also supported by members of my own party, the Greens, Dignity for Disability and the Xenophon party in that chamber.

This bill follows on from, and finishes, the work of a previous bill I co-sponsored with the Hon. Tammy Franks in 2010 in the last parliament. That bill gave recognition to both mothers where a child had been conceived by a same-sex couple, both of whom were women, allowing the non-biological mother to be recognised on the birth certificate.

The concept of presumptive parentage is a longstanding one. Put simply, it means that if a woman falls pregnant and bears a child, that child is presumed to be the child of her partner—traditionally, a husband. The presumption is not traditionally based on any DNA or biological measure and so, where a same-sex couple deliberately uses assisted reproductive technologies and donor sperm, the woman's partner is simply presumed to be the other parent. This is what happens in other states and it is what happens here now, but with a three-year qualifying period.

The legislation presented today carries on from a previous bill I sponsored with the Hon. Tammy Franks on behalf of a particular couple, who are constituents in my electorate of Unley and whose daughter, Maddie, is now seven years of age. Joe and Terri have also since successfully conceived and birthed a son, so they have a pigeon pair in that very happy family. I congratulate them on their success and their family.

Joe and Terri campaigned long and hard to get that recognition. It was a proud day for their family, and it was a day that also gave that same legal certainty and recognition to dozens of other families. Fortunately, they had been known as a couple for more than three years. However, one subsection of this group—those couples who had not cohabited for three of the previous four years prior to the conception of their child—did not benefit from that legal certainty and the recognition of a second parent on the birth certificate.

Some of those families are now in the invidious position of having a birth certificate recognising both mums in relation to their younger child but not their older child. Obviously, the fact that they have gone on to have other children is more evidence that they were committed as a couple before the three-year qualifying period. They may have been together for five, 10, 15 or 20 years, but if they had not been together for the three years before their first child was conceived, then recognition on the birth certificate is denied for that child.

There are obvious day-to-day implications—the ability of the non-biological parent to give health and education consent, to travel with the child and to have the security of knowing that, should the birth mother die or be seriously injured or ill, the connection that has been there for the non-birth mum will have legal certainties for that child.

Same-sex headed families have certainly been the subject of a committee of inquiry. I was pleased to be on the Social Development Committee and introduce those terms of reference along with the Hon. Ian Hunter as the first act of that committee in 2010. It was a very thorough hearing, it went for about 12 months, and there were quite a number of recommendations that the committee has asked the government to consider. If I have time, I will read some of those into Hansard just to remind the parliament that there is more work to be done on the same-sex parenting issue.

It seems punitive to treat same-sex couples differently from other same-sex couples—same-sex couples here in South Australia compared with same-sex couples elsewhere—and same-sex couples from opposite-sex couples 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 and is certainly adequate for the federal government's processes, so it should be for the state government's processes.

Although it would normally be a fortunate event for Elise and Sally, their baby was conceived on their very first attempt. In fact, if they had been unsuccessful and waited for a second round, they would have been living together for that three-year qualifying period. Unfortunately, Sally is not now recognised as Tadhg's parent. As the legally invisible parent, Sally cannot pass on her UK citizenship to Tadhg nor, when he gets older, sign consent forms for school, for example, or for medical procedures. He is now well past his first birthday and still does not have a birth certificate.

Day to day, this causes problems. A recent interstate plane trip was endangered when Elise, the birth mum, turned up to fly with young Tadhg, the airline warning that, in future, they would not be as lenient because they needed proof that a child was not yet two years of age and therefore not requiring a seat for their travel. I have seen Tadhg and he is quite a large child, so you can understand that the airline would want to see a birth certificate to prove that the child was under two years of age. I should say that he is tall.

Sally cannot make medical treatment decisions for her son in an emergency or where Elise is either unreachable or unable to do so. 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 very happy to be introducing this bill today to support them, and I am certainly happy to help them with that. They have also lodged a complaint with the Human Rights Commission, and I note that the process is still in train, and I will keep the house up to date with how that goes.

I would like to tell a quick story about Rosalie and Kylie. They do not have children yet, so you might wonder why they would want 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. On 17 April this year, they went and married in New Zealand and now they plan to start a family. They wrote to the Hon. Tammy Franks and told their story and, basically, they say:

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.

That does not make any sense. Basically, they go on to say that they were a couple but not cohabiting for many years prior to their marriage—and remember that their marriage is not recognised in Australia.

Hundreds of families are affected by what I would call an anomaly in the legislation in South Australia, and this bill will remove discrimination for same-sex couples so that they are not put in a different category, as parents, simply because they are not what some people would consider to be the traditional family.

In summing up: we have a situation where a non-biological parent in an opposite-sex family is presumed to be the father of a child born within that relationship without any time barrier, whereas in a same-sex relationship that has a qualification of proof of cohabitation for three years. I urge members to support the bill.

Mr KNOLL (Schubert) (11:25): In the couple of minutes I have available to me I will make a few comments and then obviously make a few more the next time we debate this bill. From the outset, I would like to say that I have not come to a final position but the bill did intrigue me and inspire me to delve deeper into the background behind it and what the current situation is. As I understand the current situation, part 8 of the Family Relationships Act 1975 states:

Subject of Part 2A, a child born to a woman during her marriage, or within ten months after the marriage has been dissolved by death or otherwise, shall, in the absence of proof to the contrary, be presumed to be the child of its mother and her husband or domestic partner or former husband or domestic partner (as the case may be).

It goes on:

For the purposes of this section, a reference to a marriage includes a reference to a qualifying relationship.

The definition of 'qualifying relationship' under 10A(1)(b) states:

…qualifying relationship means a marriage-like relationship between 2 people who are domestic partners (whether of the same or opposite sex).

As I read that section, and quite clearly read, it means both couples of the same or opposite sex. My understanding from reading this, and certainly from the advice and questions I have asked of the legal fraternity, is that this section does apply equally to heterosexual and homosexual couples. Whilst I do not think there is inherent discrimination in the section as it stands, I think there is some issue that can be taken with the way that this clause applies.

For heterosexual couples there are two ways to get around this section. The first is to get married and obviously the section I read out previously says that. When two people enter into a marriage, it is obviously the sign of a very significant commitment they make to each other, and children resulting from that form part of a nuclear family in the same way that it has done for generations and, indeed, even longer.

The second way that a heterosexual couple can get around this—and keep in mind that I am talking here about non-biological parents being put onto the birth certificate—is by having a child naturally. It is the case that a birth certificate has for a long time recognised a biological mother and a biological father. Having a child is a huge responsibility and, with a three year old at home, I know that my wife and I do not take that responsibility lightly at all.

Obviously, what we are talking about here is the instance of putting a non-biological parent onto a birth certificate and there is a three-year qualifying clause that is part of that. May I say that I want the three-year clause, but I do not just want it for non-biological parents: I would like it for parents, I would like it before two people decide to have a child naturally. This is something that two people should not enter into lightly. In this modern age, when we are increasing lead decoupling rights from responsibilities, I would love to see more care and cause taken before the decision is made to have a child.

When it comes to this particular amendment, I would also be quite happy or more comfortable if, for instance, in the case that we are talking about here (mentioned by the Hon. Tammy Franks and by the member for Unley), the child is born before the three-year qualifying period, that after the three-year qualifying period we could look at amending the birth certificate in that way.

When it comes to marriage and naturally having a child, I understand that those options are not available to same-sex couples. I understand that there is then a practical form of discrimination if not one that is immediately identifiable from the law itself. There are a number of other points that I want to make, but I seek leave at this time to continue my remarks.

Leave granted; debate adjourned.