Kendall, Christopher N; Leishman, Bruce; Rogerson, Sonya; Walker, Sonia --- "Same-Sex Relationships In Western Australia" [2000] MurdochUeJlLaw 38; (2000) 7(4) Murdoch University Electronic Journal of Law

Same-Sex Relationships In Western Australia

Authors:	Christopher N Kendall BA (Hons), LLB, LLM, PhD Associate Professor, Murdoch University School of Law
	Bruce Leishman BA, LLB Murdoch University School of Law
	Sonya Rogerson BComm, LLB Murdoch University School of Law
	Sonia Walker BA (Hons) LLB (Murdoch) M Phil (W Aust) Lecturer, Murdoch University School of Law
Issue:	Volume 7, Number 4 (December 2000)

Editors' Note: Although this article is addressed to a non legally educated audience it is published here as a refereed scholarly paper. The article has been formally refereed and in the editors' view it demonstrates a high level of scholarship both in the underlying research and in the careful, comprehensible and accurate expression.

Contents

• Introduction
• Property and Finances
• Introduction
• Buying Property
• Real Property
• Tenancy in Common
• Joint Tenants
• Property Agreements
• Agreements as to Purchase and Sale of the Property
• Renovation, Alteration or Maintenance of Property
• Tax Implications of Transfer of Property
• Rental of Home or Property
• Personal Property
• Finances
• Trusts
• Mortgages
• Other Joint Financial Arrangements
• Children
• Introduction
• Custody -- Children from Heterosexual Relationships
• Lesbian Co-Parents
• Lesbian Mother, Gay Male Father
• Testamentary guardians
• Adoption
• Conception
• Domestic Violence
• Employment
• Introduction
• Discrimination in Employment
• Sexual Harassment
• Complaints of Sexual Harassment
• Unfair Dismissal
• State Acts
• Commonwealth Acts and Their Relation to Western Australian Employees
• Human Rights and Equal Opportunity Commission Act 1986
• The Federal Workplace Relations Act
• Bringing An Action In The Australian Industrial Relations Commission
• Bringing An Action In The WA Industrial Relations Commission
• Further Information
• Workers Compensation
• Migration
• Sponsoring Your Same-Sex Partner to Live in Australia
• Sponsoring Your Partner - Inter Dependency
• Assurance of Support
• Evidence of Cohabitation
• Waivers
• Required Application Forms
• Application Costs
• The Application Process
• Change Of Circumstances
• Limitations Of Sponsorship
• Appeals
• Assistance
• Government Financial Support
• Social Security Payments
• Health Issues
• Hospital Visitation Rights
• HIV Testing And Confidentiality
• Hospital HIV/AIDS Policies
• Contact Numbers
• Privacy And Health Records
• Disability Discrimination
• Incapacity of a Partner
• Enduring Power of Attorney
• What is it?
• Why is an Enduring Power of Attorney Necessary?
• Can I Appoint More Than One Person?
• Who Can I Appoint to Make Such Decisions on my Behalf?
• What are the formalities which I must comply with in order to create an Enduring Power of Attorney?
• Will I need more than one copy?
• Can I place any restrictions on the decisions which the donee can make on my behalf?
• When does the Enduring Power of Attorney come into effect?
• How do I end an Enduring Power of Attorney?
• Is the person to whom I give an Enduring Power of Attorney subject to any obligations?
• What happens if the person to whom I grant the Enduring Power of Attorney misuses the power when I am not legally capable?
• What happens if the person to whom I give the Enduring Power of Attorney is unsure as to how to make a decision?
• Do I have to pay stamp duty on the Enduring Power of Attorney?
• Where can I get the forms?
• Where is the Office of the Public Guardian and the Board?
• Wills, Death and Inheritance Matters
• What is a will?
• What is an executor?
• Why is a will essential?
• Disposal of the Deceased's Body
• Changing your will
• Dying without a will
• Problems of Dying Intestate
• Payment of debts
• Can a Court Change My Will? - The Inheritance (Family and Dependents Provision) Act
• Why you need both a Power of Attorney and a Will
• Superannuation
• Appendices
• Appendix A: Sample Cohabitation Relationship Agreement
• Appendix B: Agreement to Jointly Raise a Child (Child Parenting Plan)
• Appendix C: Sample Last Will and Testament
• Appendix D: Enduring Powers of Attorney
• Notes

Introduction

1. In January, 1999 a number of articles appeared in the West Australian and other local Perth newspapers describing the community's quite justified disbelief at the legal mistreatment of Perth resident, Danilo Rodrigues Romao.

2. Mr Romao, a gay man, suffered the tragic loss of his same-sex partner of 27 years, John Gilbert, in September 1997. Although the two men had shared a life together and jointly owned most of the belongings in their Mount Lawley home, Mr Romao was informed in January of this year that he would probably lose his home to some of Mr Gilbert's distant relatives.

3. The property title to the couple's home was in Mr Gilbert's name alone. If the couple were heterosexual, the house would have almost certainly been given to Mr Gilbert's partner. Because their relationship is not recognised as "valid" under West Australian law, however, Mr Romao has no automatic legal claim to Mr Gilbert's estate and is now at the mercy of Mr Gilbert's relatives - persons whose legal rights rank ahead of Mr Romao.

4. Danilo Romao's situation, while tragic and clearly discriminatory, is not uncommon. Each year, many lesbian and gay male relationships in Western Australia are legally labelled "invalid", "not recognised", "unequal." This results in many gay men and lesbians being denied access to shared property, denied the right to adopt children and being discriminated against in employment. It also results in costly litigation proceedings often avoided by those in heterosexual relationships.

5. Western Australia remains the only Australian State without basic human rights protections for lesbians, gay men and their partners. Same-sex relationships are denied legal recognition and this often results in unacceptable social and legal inequality. This paper aims to provide basic legal information and advice to those in same-sex relationships. It outlines what the law is and, to the extent that this is possible in a State that appears adverse to true systemic equality, how best to ensure that these relationships are granted some degree of protection and legal recognition.

6. Like our heterosexual counterparts, lesbians and gay men form many different types of relationships. As such, it is rather difficult to write a paper that applies to each and every relationship within our community. As always, it is best and often necessary to consult with a lawyer before making any decisions which might impact on the legal status of your particular situation. This paper does not constitute legal advice. Rather, it offers a brief introduction to those legal issues and questions which we believe are most likely to impact on the lives of lesbians, gay men and their families. We offer some suggestions for devising strategies but, as always, strongly suggest that those who foresee problems seek professional legal advice.

7. On a much wider level, we write this paper in an attempt to encourage all persons committed to social justice to continue their struggle for the full recognition of our relationships and needs. While we have not covered every topic of interest to the lesbian and gay community, we do hope that this paper goes some way in detailing the state of the law in Western Australia, while encouraging much needed social activism and legal reform.[1]

   Property and Finances

   Introduction

8. As with many other areas of the law, people in same-sex relationships are not granted the same property rights and benefits as people in heterosexual relationships. Further, given that Western Australia's Equal Opportunity Act does not prohibit discrimination on the basis of sexual orientation or sexuality (as is the case in all other states), same-sex couples, as well as lesbian and gay people generally, will often find that they can be discriminated against in property matters with few legal avenues in place to assist them.

9. It is vital that lesbians and gay men in same-sex relationships think carefully about how best to arrange their financial affairs in order to ensure that both they and their partner are offered as much protection as possible in the event of death, relationship breakdown, when dealing with superannuation etc.

   Buying Property

10. In so far as the law is concerned, property is divided into real property (which includes land and buildings) and personal property (which includes virtually everything else that is capable of being owned).

    Real Property

11. When two or more people purchase real estate together, they can own it either as tenants in common or as joint tenants.

    Tenancy in Common

12. A tenancy in common is a specified share in a particular property or parcel of land. In the event that a relationship ends, the share or interest which each party to the relationship has in a particular property or land can be disposed of as each party sees fit.

13. Where you or your partner dies, the deceased's share forms part of their estate, and may be divided up according to their will. If the partner dies without a will, then that person's property will go to their next of kin. This means that their share of the property can go to their father or mother, but will not go to their same-sex partner. This arises because same-sex partners are not legally recognised as the deceased's next of kin.

14. Hence, if property is purchased as a tenancy in common, it is essential that a valid, legally recognised will be written, signed and witnessed. This will ensure that if one partner dies, their share of the property will not transfer to a third party.

15. Owning property or land as tenants in common is sometimes advantageous if one partner wishes to use their share of the property to settle outstanding financial debts. However, this type of ownership arrangement may prove impracticable and less desirable if one partner wishes to sell his/her share of the property or land to which her/his partner has access.

    Joint Tenants

16. Where you and your partner hold property as joint tenants, both of you hold the property as legally recognised co-owners. This means that you both hold an undivided share in the whole title of the property. Where one partner dies, the survivor automatically becomes the whole owner of the property. This occurs irrespective of the will of the partner who dies since the property does not form part of the deceased's estate. The advantage of this type of arrangement is that it prevents an outsider (like the deceased partner's next of kin) from obtaining a share in the property or estate, thus providing more security for the co-owner and avoiding sometimes stressful legal proceedings.

17. Should your partner already own property and wish to ensure that you are entitled to it in the event of her or his death (ie, by placing your name on the title as a joint tenant or by saying so in her or his will), you should again consider the best way to ensure that this is done. While joint tenancy may seem more appealing, you should note that in Western Australia, a stamp duty tax applies to any change of ownership. While heterosexual couples and opposite-sex co-habitant couples are exempt from this tax, same-sex couples are not legally exempt and will thus find themselves having to pay an at times hefty tax. While this is clearly discriminatory, it is nonetheless the state of the law in Western Australia and you should prepare yourselves accordingly.

18. Should a relationship end, one partner may wish to sell their share and the other may refuse or may be unable to afford to purchase their partner's share of the property. While it is sometime preferable to avoid legal proceedings, as they can prove costly and emotionally difficult, sometimes we are left with no option and it is possible to obtain a court order for the forced sale of jointly owned property. If you should find yourselves in this situation, you may prefer to use the courts only after all forms of dispute resolution (such as arbitration and mediation) have proven unsuccessful.

    Property Agreements

    Agreements as to Purchase and Sale of the Property

19. The division of property at the end of a relationship often proves difficult. This is particularly the case where one party has initially purchased the property and it has then become the joint home with both partners making contributions to the mortgage or to home improvements.

20. Before you decide to commit yourselves to any purchase of property, it is important that you obtain legal advice as to how the ownership and purchase of the property should be arranged and what, if any, arrangements should be made in the event of sale of the property.

21. A formal property agreement can be prepared to avoid problems in the future. Such agreements prevent problems arising in the event of relationship break-up or death of a partner. It is recommended that you consult a lawyer for legal advice in advance of any purchase, rather than lose a large proportion of your share of the property in the future should your relationship end.

22. It is best if you decide in advance what will happen to your property in the event of a relationship breakdown. A contractual agreement can be prepared to deal with issues such as who will continue to live in the property (if you own the property as joint tenants), who will pay what outgoings, whether the property should be sold, if so then how and to whom, and who will meet the expenses of moving. These agreements can prove useful to the courts should any dispute arise as to each person's rights and obligations upon relationship breakdown. An example of such an agreement, prepared by Canadian lesbian activist and writer Laurie Bell, is provided in Appendix A to this paper.

    Renovation, Alteration or Maintenance of Property

23. For many of us, our home is our most valuable asset and as those of us that own homes will tell you, home ownership and maintenance comes at a price. Never assume that that last renovation will in fact be your last!

24. It is imperative that you keep documentation and records regarding the purchase of the home and each partner's contribution of time, labour and money towards any renovations, alterations or maintenance of the property. In the event of relationship breakdown, this will help avoid problems arising out of disputes about these contributions.

    Tax Implications of Transfer of Property

25. Should you decide to purchase your partner's interest in property, you should again note that when real property is transferred, stamp duty imposed by the State Government is payable at specified rates that are determined by the sale price. Heterosexual couples who separate are entitled to certain exemptions from payment of stamp duties when they transfer property from two names to one name, if this is done in accordance with a court order or registered agreement. This is not the case for same-sex couples. You may choose, therefore, to make some arrangement in your property agreement to have these expenses covered in the event of relationship breakdown.

    Rental of Home or Property

26. Because the Equal Opportunity Act (WA) does not cover discrimination on the basis of sexual orientation, lesbians and gay men can be denied accommodation on the basis of their sexuality. Similarly, in some circumstances lesbians and gay men can be asked to leave their rental properties on the basis of their sexuality. Having said that, although equal opportunity legislation does not protect against unjust termination of a lease on the basis of sexuality, it is nevertheless quite difficult to remove tenants from many rental arrangements. You should always check your rights as a tenant under the Residential Tenancies Act (WA).

27. If a lesbian or gay man is evicted from rented residential premises and they believe it may be on the basis of their sexuality, they should first determine if they are subject to a fixed term lease. If their lease is for a fixed period (ie, one year), the property owner cannot by law force them from their apartment or house unless there has been a clear breach of one of a number of the provisions in the Residential Tenancies Act.

28. Section 73 of the Act, for example, allows for the termination of an agreement where the tenant is causing serious damage to the property. Sexuality status is not a ground for termination. Thus, a person who is a party to a fixed term agreement cannot be evicted by reason of their sexuality alone. Fixed term agreements thus provide lesbians and gay men with the most comprehensive protection when renting property.

29. If there is no fixed term agreement, (ie, an agreement that does not clearly specify the duration of occupation), then the owner of the property can demand that the premises be vacated without issuing a reason, provided that the time period specified by the Act is complied with. Section 64 of the Act states that:
    
    
    1. An owner may give notice of termination of an agreement to a tenant without specifying any grounds for the notice.
       
       
    2. Where an owner gives notice of termination under this section the period must be no less that 60 days.
       
       
    3. This section does not apply in relation to an agreement that creates a tenancy for a fixed term during the currency of the term.
       

30. Thus, if a property owner wishes to remove a tenant because he or she objects to that tenant's sexuality, they do apparently have the right to do so without providing a reason for termination. Sixty days notice must, however, be given.

31. If you are having rental difficulties and think you are being unjustly asked to leave your premises, you should direct your inquiries to:
    
    Tenants' Advice Service
    P.O Box 8437
    Perth Business Centre
    East Perth WA 6849
    Telephone: [phone]
    Facsimile: 9221 9609

32. This is a specialist service which provides an advice and advocacy service for all residential tenants.

    Personal Property

33. In relation to personal property like cars and washing machines, generally the legal owner is the person whose name appears on the purchase documents. Hence, for expensive registrable items such as motor vehicles, the registration papers (which appear in one name) will establish ownership even where two people have purchased the car for the use of both parties.

34. Careful consideration of the possibility of a relationship breakdown before property is purchased will avoid unnecessary arguments as to its ownership when the relationship ends.

35. If you are not content to simply rely on registration documents, both partners to a relationship should keep records of what they have purchased, who paid what etc. You may also choose to outline (in a relationship agreement) who is entitled to what upon separation.

    Finances

36. Occasionally, there are problems attached to the financial arrangements made by couples wanting to invest in property. For example, sometimes one partner will have more money than her or his partner but may nonetheless want to ensure that the property is seen as belonging equally to both partners.

37. While a joint tenancy can resolve this issue, some people may not want to hold their property in joint tenancy. There are several financial arrangements available to gay and lesbian couples intending to invest in property which may resolve some of these problems.

    Trusts

38. Assuming your property is not held in joint tenancy, if you and your partner decide to make unequal contributions to the purchase of a property you may nonetheless want to ensure that the property is seen as belonging equally to each partner. Apart from the option of drawing up a property agreement, you may also wish to consider creating a trust.

39. If a partner has made a contribution to the acquisition of the property but their name does not appear on the legal documents which indicate ownership, they may be able to establish that the legal owner held their share of the property on trust for them. To do this, however, they must be able to establish that there was a shared intention that the legal owner was holding the property on trust for the two of them. The best way to establish this is in writing by a proper trust document by a lawyer.

40. This avoids the problems that arise where, after sale of a property, the partner who has made a larger contribution claims a greater share of the proceeds of sale of the property. The trust effectively states that the person who has made the larger contribution intended that both owners would have an equal share in the property, despite the fact the other partner made a smaller contribution. Alternatively, the trust document may state that the parties hold their interests in the property in proportion to their contributions.

41. There may be tax implications in creating a trust and transferring property in this way. It is advisable to consult a lawyer to ensure that both parties' intentions are properly documented and that the tax implications are properly considered.

    Mortgages

42. Most people who require financing for the purchase of their property obtain it by taking out a mortgage. Both partners enter into a financial agreement with a bank or a financial institution whereby money is borrowed on the security of the property. If the mortgagor (the borrowers) fail to repay the loan as arranged, the mortgagee (the bank) can then take steps to have the property sold to recover the amount outstanding. This process is known as foreclosure.

43. If the property is owned by you and your partner as joint tenants, the mortgagee will most likely require both of you to become parties to the mortgage. Where you own the property as tenants in common, and only one partner needs to borrow money by way of mortgage, then only that partner's share of the property is subject to the mortgage.

44. If the mortgage is taken in both your names, then each person is equally liable for periodic repayments until the full amount is paid. You are also equally liable for the full repayment in the event of foreclosure. It is also possible to make arrangements whereby one person is liable for a greater share of the mortgage. This can be done by means of an indemnity. This means that one partner can claim back from the other that agreed part of the debt that she/he was obliged to pay under the mortgage. You should seek legal advice if you intend to make such arrangements.

45. In addition to the usual building and content insurance which you take out when buying the property, you should also consider mortgage and life insurance. These types of insurance operate to protect against the possibility of one partner being unable to pay their share of the mortgage, thereby leaving the other with the burden of paying the whole amount.

46. Mortgage insurance can be taken out by both partners to protect mortgage repayments in the event of illness or retrenchments. The period of protection will be limited depending on the terms of the insurance agreement.

47. Life insurance may also be taken out by one partner on the life of the other. This protects one partner from the burden of repaying the whole mortgage if the other partner dies. It further gives the surviving partner a lump sum payment on the death of the other partner.

48. You should always ensure that your partner is listed as the beneficiary on any insurance policy in which a beneficiary is listed. Similarly, should a relationship end, you should take steps to remove your ex-partner's name from these documents.

    Other Joint Financial Arrangements

49. Where you and your partner enter into joint financial arrangements, you are both equally liable for any debts that arise. For example, where you have a joint credit card account, both of you are liable for payment of the accounts irrespective of who is at the receiving end of the goods or services purchased. It is therefore important that you be aware of the conditions attached to any credit card or loan agreement before you enter into it with another person or arrange to have another person issued with a credit card in your name or account.

50. Many couples open joint accounts as this makes it easier for paying bills etc. It is important to remember that the joint bank account continues even when your relationship comes to an end. It only closes when one partner takes action to close the account. If the joint account allows both partners to withdraw funds independently, then you should reach some agreement as to how the credit should be distributed upon closing the account.

51. In the event of death of one owner of a joint bank account, the money in the account automatically becomes the property of the surviving owner, and is not distributed according to a will. This is very useful if you wish to ensure that your partner has ready access to cash in the event of an emergency.

52. Be aware that in the event of a relationship breakdown, one partner can withdraw the entire amount in the account without the knowledge of the other partner. This can be prevented by writing to your financial institution upon relationship breakdown and requesting that all funds be frozen until property matters are finalised.

    Children

    Introduction

53. More and more lesbian and gay couples are choosing to have and raise children. Some lesbians and gay men have children from previous heterosexual relationships. Others have either become or want to become parents via a 'less traditional' manner, such as through donor insemination, using either a known or anonymous donor. Still others have chosen to raise children as part of an extended family (ie, as in the case of one or two lesbians who choose to have and raise a child with one or two gay men).

54. It is vitally important for you and your partner to consider the legal implications of bringing children into your relationship. The law does not readily accommodate gay and lesbian parents or co-parents and there are many legal hurdles which you and your partner should be made aware of before choosing to have or raise a child. The absence of specific legislative provisions covering gay and lesbian parents and co-parents is generally to the detriment of those parents rather than to their advantage and you should always consult with a lawyer before making any decision in this regard. Advance planning is essential to ensure that your family is respected and recognised when you need it to be. Litigation can be traumatic at the best of times. Litigation involving children can be devastating.

55. This section deals with the application of the law to you, either as the gay biological father, the lesbian biological mother or gay or lesbian co-parent. It also offers some advice as to how best to protect your interests and the interests of your child(ren).

    Custody -- Children from Heterosexual Relationships

56. Where a child is conceived by opposite-sex co-parents, the law considers both the biological mother and father to have parental responsibilities toward the child. This means that both parents have "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children." This parental responsibility does not alter if the parents divorce or separate, or alter their relationship in any way. No aspect of parental responsibility will be diminished or removed unless a parenting order, made by the Family Court, expressly provides for it, or it is necessary to do so in order to give effect to that order.

57. The Family Court can make orders for residence, contact, child maintenance and other specific issues. A residence order determines which parent the child will live with. A contact order will determine the length of time a child will spend with the other parent. A child maintenance order will determine who will pay maintenance for the child and how much will be paid. A specific issues order will determine any other issue such as guardianship.

58. The courts very rarely grant joint residence in disputed residence claims. Usually, sole residence is granted to one parent, as this will ensure that a stable home environment is maintained for the child. The parent being granted sole residence then has the day to day care and supervision of the child. The non-residential parent is usually granted contact in the form of visiting rights, which allow the child to visit on weekends, school holidays, birthdays or any other significant dates with the other parent.

59. Although one parent may be granted sole residence, the guardianship or parental responsibility of the child remains joint in the absence of any court order. This means that both parents have the right and power to protect the welfare of the child. Therefore, if there are any major decisions to be made with respect to any aspect of the child's life (ie, regarding education, religion etc.), the residential parent has an obligation to consult with the non-residential parent regarding these decisions. However, the court may make use of a specific issues order to remove guardianship or parental responsibilities from a parent if the court deems this to be appropriate in the circumstances.

60. In determining who should be granted residence of a child, the "welfare of the child" is of paramount consideration. This is emphasised in the Family Law Act 1975 (Cth), and it has always been the approach adopted by the Family Court in Western Australia. There have been no cases to our knowledge in Australia that ever viewed a parent's sexuality as a presumption of unfitness. The court has always held that sexuality is not prima facie a negative factor in determining residency and attracts no negative presumptions.

61. While a person's sexual orientation is no longer an acceptable reason to deny residence, it remains the reality for all lesbians and gay men that some people in our society continue to reject and discriminate against us and our relationships. In the eyes of the law, this discrimination may be seen as a factor to be considered in determining a residence order.

62. In the not too distant past, where residence was granted to a homosexual parent, it was sometimes accompanied by discriminatory conditions, which had to be followed by the parent and her or his same-sex partner. For example, it was not unheard of for the courts to insist that same-sex partners not demonstrate affection toward each other in the presence of the child. Although conditions of this sort are no longer imposed, one's sexual orientation may still be considered an issue should the court decide that the child's welfare is likely to suffer due to their parent's sexual orientation. For example, the possibility that the child may be subject to ridicule or abuse at the hands of others due to their parent's homosexuality may be deemed relevant in determining the best interests of the child.

63. While it is difficult to determine how exactly a court of law will view each individual case before it, it is probably safe to say that in deciding who should be granted custody, the courts may consider a number of factors including:
    
    
    • any wishes expressed by the child;
    • the nature of the child's relationship with the parents and other significant people, (eg. a co-parent or extended family);
    • the likely effect on the child of any changes in circumstances, such as the separation from either of their parents;
    • the practical difficulty and financial cost of a child having contact with the parents;
    • each person's capacity to care for and provide for the emotional, intellectual, and financial needs of the child;
    • the child's maturity, sex, and background, including culture, connections, and religion;
    • the need to protect the child from physical and psychological harm caused by abuse, ill treatment, or violence, towards either themselves or someone else in the family;
    • the attitude of parents toward their child and their parental responsibilities;
    • family violence; and
    • any other factor the court considers relevant (for example the child's current living arrangements, as courts are often reluctant to alter these if it can be shown the child is settled and well adjusted where they are, or whether a change of school is likely, and whether the child will be separated from their friends or other siblings).
    
    

64. Should you find yourself in a situation in which you fear being denied contact or residence with your child, it is important to keep in mind that, in the eyes of the law, your child's safety and security is paramount. Sexual orientation is becoming less of an issue and lesbians and gay parents should not forgo an application for residence or contact for fear that they will be judged inappropriate parents. There is a wealth of social science data to show that gay and lesbian parents do not differ significantly from heterosexual parents and the court is able to consider and rely on this material. Getting a supportive and non homophobic lawyer who has or will research and present this material is thus vital.

    Lesbian Co-Parents

65. Two women who choose to raise a child together, one as the woman who gives birth (the biological mother) and the other as an active parent (the co-parent), may choose to raise the child on the basis that both will have full parenting rights and responsibilities. Unfortunately, as the relationship between the non-biological co-parent and the child is not generally legally recognised, legal difficulties do arise. In the event of a residence dispute, for example, the non-biological parent has the difficult task of proving that a parenting relationship does in fact exist and that she is entitled to residence and contact. She does, however, have legal standing to seek both and should not be persuaded otherwise.

66. In light of these difficulties many parents find it preferable to have some understanding in writing regarding the rights and responsibilities of both parents. This might take the form of a "parenting plan" (ie, an agreement in writing made between the parents of the child) which deals with the following:
    
    
    • contact between the child and other significant persons;
    • how the parental responsibilities are to be divided; and
    • any other parental responsibilities and how best to deal with them in the event of disagreement between the parties to the agreement;
    • what to do in the event of separation;
    • what to do in the event of disagreement over the agreement to jointly raise a child.
    
    
    An example of a child parenting plan, prepared by US authors Hayden Curry, Dennis Clifford and Robin Leonard has been provided for you at Appendix B of this paper.

67. According to legal academic Jenni Millbank, who has written extensively on this issue, where a lesbian couple has a child together, only the biological mother has a legal relationship with the child. The Family Court does, however, have the power to grant a "parenting order" in favour of parents and "any other person concerned with the care, welfare or development of the child." These orders can be granted to lesbian couples and have been successfully used in other states. This means that a mother and co-mother may apply jointly to have their parenting agreement recognised and enforced as joint parenting orders by consent. These plans may serve as evidence of you and your partner's intentions regarding your parental roles and expectations. For more information in this regard, you should read Millbank's work as found in volume 1[2] of the 1998 edition of the Australian Journal of Family Law at pages 99 to 139. This work is by far the most comprehensive and accessible survey of the law in this area. It is a must-read for parents and prospective parents alike.

68. With respect to child support in the event of relationship breakdown, recent case law supports the conclusion that a non-biological lesbian co-parent can be required to pay child support to the biological mother, even if not legally recognised as the child's parent. In the 1996 case of W v G, two women separated after eight years together. Two children were born to the plaintiff (Wendy) during that time as a result of donor insemination. Wendy asked the court for compensation from her partner on the basis that her partner had always intended to help raise the children. The court agreed and Wendy was granted a lump sum payment of $150,000 from her former partner.

    Lesbian Mother, Gay Male Father

69. It is not uncommon for lesbian mothers to parent a child with a gay man. Often, this is done with the expectation that both parties will share responsibility for raising and supporting the child, even though the parties do not live together or have much to do with each other outside the context of child rearing. While this might seem appropriate for many people, it is important to remember that once a relationship of this sort is entered into, the relationship would legally be seen as ongoing until the child reaches the age of 18. Unless modified by a court of law, both biological parents have full legal rights over the child, regardless of the living or personal arrangements of the parties - unless the gay father is a sperm donor, in which case he is not the legal parent of the child (see below) or unless modified by a court of law.

70. Sometimes this type of relationship can prove difficult and much legal time and effort has been expended by people in these relationships trying to sort out the actual legal rights of all parties concerned. This is particularly the case where both biological parents have partners who wish to share in the raising of the child(ren). It is suggested that before entering into any relationship of this sort, all parties (whether there be two, three or four) carefully consider how they want to divide child rearing responsibilities. Again, it is best to outline these obligations and rights in a formal agreement, which can be then be enforced by the Family Court with consent of the parties in the form of legally enforceable parenting orders.

    Testamentary guardians

71. A lesbian or gay parent may appoint their partner (a co-parent) to be the testamentary guardian of their child. This ensures that the partner will become the custodian of their child in the absence of a Family Court order to the contrary if they should die before the child reaches 18 years of age. The appointment may be done by way of a will or deed.

72. Unfortunately, the appointment of a testamentary guardian is not effective unless a surviving biological parent agrees. If the biological parent opposes the appointment, the Family Court must again regard the welfare of the child as being the paramount consideration in determining the matter. In doing so, the court will take into account the level of involvement of the co-parent in raising the child before deciding who should be granted custody.

    Adoption

73. Adoption essentially means that a child is completely separated from its original family and enters into a new family. Under the Adoption Act 1994 (WA), lesbian and gay couples cannot jointly apply to be prospective adoptive parents as couples have to be lawfully married or co-habiting in a heterosexual relationship for at least 3 years before they can legally adopt.

74. In regard to single persons, the Act does not prevent a gay or lesbian person from applying to adopt a child. This means that one partner from a lesbian or gay couple can apply for adoptive parenthood and thus be legally recognised as the parent of the adopted child. This person is then the only person entitled to all the duties, powers, responsibilities and authority conveyed by law to parents in relation to children.

75. In this situation, the non-parent is placed in a disadvantageous position as, upon separation, residence is immediately granted to the adoptive parent as there is a strong preference to grant residence to parents over non-parents. The non-parent is only awarded residence where there is clear and compelling evidence that the parent who initially adopted the child is unfit.

76. Same-sex partners cannot adopt the children of their partners from a previous marriage. Only people who are married or who live in a heterosexual de facto relationship can do so.

77. As there are very few children available for adoption, it is quite unlikely that lesbians and gay men will be considered eligible for adoptive parenthood. However, the possibility of fostering a child remains, as lesbians and gay men are not excluded by any law from fostering children. Fostering arrangements are different to those concerning adoption in that fostering does not entail the same legal rights over the child as adoption. As Jenni Millbank explains, foster parents provide residential care for the child and receive some financial compensation from the government. In some cases, a foster placement may lead to adoption, although return to the family is the stated policy goal of foster care. Informal departmental policy in Western Australia is such that the sexuality of foster parents is not reason alone to deny potential foster parents.

    Conception

78. Lesbian couples may choose to become pregnant through donor insemination or in-vitro fertilisation (IVF).

79. In WA, the relevant legislation refers to "artificial insemination" as the process of impregnating a woman with sperm through the use of instruments. In-vitro fertilisation involves the process of surgically extracting eggs from the woman which are then placed in a laboratory dish. Semen is later added into the dish to allow fertilisation of the egg. The fertilised egg is then transferred to the uterus to allow conception to take place.

80. The Human Reproductive Technology Act (WA) 1991 restricts the provision of IVF treatment to women who are legally married or in a heterosexual, defacto relationship of at least five years duration. Similar legislation exists in Victoria and Tasmania. In the other States and Territories, guidelines published by the National Health and Medical Research Council restricts the provision of IVF treatment to women in an 'accepted family relationship'. The meaning of 'accepted family relationship' is not provided. Within the context of the guidelines provided, however, the clear focus is on the welfare of the child to be born. Whilst the guidelines are not binding, they are quite influential and funding may be denied to any service providers in breach of the guidelines.

81. As the Human Reproductive Technology Act (WA) 1991 prohibits the provision of clinically monitored donor insemination and IVF treatment to single women, this technology is not an option for most lesbians as one would have to marry a man in order to become eligible for state sanctioned donor insemination services, at least in Western Australia. While one may still attempt to undergo this procedure in another state, in addition to any concerns these clinics may have regarding the appropriateness of assisting lesbians and single women in this regard, you should also note the costs of going through an IVF program are onerous.

82. In light of the above, many lesbian couples choose to rely on anonymous sperm donation with the donor's sperm being administered at home. For many, this raises the question of paternity. What, for example, happens, if the donor later wants to claim visitation or residency with the child. Does he have rights? Similarly, can a donor later be made to pay child support payments etc.

83. This area of the law is complex. As always, any decisions regarding children should be made after consultation with a lawyer. Having said that, some conclusions regarding paternity and rights can be drawn. The best summary in this regard is offered by Jenni Millbank, who notes that, in all Australian jurisdictions, one need not be a biological parent to apply for parenting orders under the Family Law Act. This means that a donor who had an interest in the welfare of the child based upon an ongoing relationship could apply regardless of paternity.

84. Millbank also notes that, in the absence of a legal husband, state statute presumes that the donor is not a father in any legal sense. This is supported from case law in other states and there is no reason to doubt the validity of that law in Western Australia. In the New South Wales case of W v G, for example, the court held that a sperm donor known to the mother is not a legal parent. In Re B and J, the Family Court was approached by a donor who had provided sperm for two children born into a lesbian relationship in Victoria. The donor was listed on the birth certificates of both children as the father and applied to the court for an order that he was not a parent liable for child support payments. The court held that a donor is not a parent even if the insemination was unlawful (ie, even if the insemination occurred outside the context of the state's prescribed medical obligations). Millbank concludes that donors will not be liable for child support in any state under child support legislation.

    Domestic Violence

85. While the topic of same-sex domestic violence remains an issue that many lesbians and gay men do not want to acknowledge, the fact remains that violence amongst lesbians and gay men is very much an issue in need of attention. Recent North American statistics, for example, reveal that domestic violence is the third highest killer of gay men each year in the United States. Australian research reveals that the problem in this country is also serious and in need of urgent community action.

86. In Western Australia, victims of domestic violence can apply to the courts for a restraining order. Lesbians and gay men are also eligible for protection from the courts should they find themselves the subject of harassment or violence.

87. Any person, irrespective of sexual preference, is able to seek a Restraining Order against a violent or abusive partner. A Restraining Order can prevent another person from behaving in certain ways, making contact with you, or coming near your home, work, or any other place regularly attended by you.

88. If a Restraining Order is breached, a criminal offence is committed, attracting a penalty of up to 18 months imprisonment and/or a $6000 fine.

89. Restraining Orders are available where:
    
    
    • you have been injured or your property has been damaged, by another person; or
    • you have been threatened with injury or property damage by another person; or
    • another person has acted provocatively of offensively towards you; AND
    • there is a likelihood of that behaviour happening again, or the threat being carried out unless the person is restrained by the Court.
    
    

90. Problematic for many lesbians or gay men who have obtained a Restraining Order is the lack of assistance sometimes received from the police in enforcing these orders. In an attempt to deal with this and other issues surrounding police-community relations, the WA Police Force has now established a lesbian and gay community liaison office. This office will deal with any complaints from the public regarding police inaction or mistreatment. Liaison Officers can be contacted at the following address:
    
    Lesbian and Gay Liaison Officer
    Western Australian Police Service
    Community Services Command
    8 Burton Street
    Cannington WA 6107
    
    Phone: [phone]
    Facsimile [phone]

    Employment

    Introduction

91. According to a 1994 report compiled by Gay Men and Lesbians Against Discrimination (GLAD), a Victorian-based human rights lobby group, almost one half of gay men and lesbians surveyed had experienced harassment and unfair treatment in employment. Specifically, the Report noted the following types of discrimination:
    
    
    TYPE OF DISCRIMINATION

    WOMEN %	MEN %
    Being refused a job	4.9	6.1
    Being refused a promotion	6.3	7.5
    Being harassed	32.1	31.8
    Being pressured out/sacked	14.0	10.8
    Breach of confidentiality	20.7	16.9
    Experiencing any or all	45.1	45.29