In this Alert, Partner Alison Ross and Associate Kathleen
Coggins discuss the recent Queensland case where a sperm donor was
removed from the birth certificate in favour of both parents'
names of a same sex couple.
In Queensland, same sex parents may both be recorded on a
child's birth certificate as a parent to a child born as a
result of artificial insemination, even if the child's birth
certificate initially recorded either only their mother, or their
mother and the sperm donor, on the birth certificate.
Regardless of who is recorded as a "parent" on a
child's birth certificate, it is open to a Court exercising
jurisdiction under the Family Law Act 1975 (Cth) to make
an order for a child to spend time with any person who is concerned
with the care, welfare and development of the particular child,
including a sperm donor who is not otherwise a legal
"parent" of the child.
A & B v C  QSC 111
In a recent Queensland case, both members of a same sex couple
have been recorded on their two children's birth certificates
as parents of the children while the name of the children's
biological father, a known sperm donor, was removed from the
children's birth certificates.
In this particular case, the two children were born to a same
sex couple as a result of artificial insemination. The children
were born in 2004 and 2006, prior to legislative changes in 2010
which enabled both members of a same sex couple in Queensland to be
recorded as "mother" and "parent" on a
child's birth certificate.
Prior to these legislative changes, the mother's same sex
partner could not be recorded as a parent on the children's
birth certificate. The mother had recorded the children's
biological father, a sperm donor, as a parent on the birth
certificates as she stated that she had been informed by Centrelink
that she would otherwise be deemed a single parent and her social
security benefits would be affected accordingly.
Once the Court decided that both the mother and her same sex
partner were the "parents" of the children under the
Status of Children Act 1978 (Qld), the Court considered
whether the public record should be amended to correct the
children's birth certificates. The Court agreed that this
should occur and an order was made under the Births, Deaths and
Marriages Registration Act 2003 (Qld) to correct the
children's birth certificates, referring to the mother's
same sex partner as a "parent" and removing the sperm
donor's name from the certificate.
Although the legislative changes enabling both members of the
same sex couple occurred in 2010, this appears to have been one of
the first cases in Queensland where the Court has affirmed a same
sex couple's right to both be recorded as "parents"
on their children's birth certificates. While the children were
born prior to the enactment of these changes, the changes are
retrospective, enabling the correction of the children's birth
certificates in this instance. There are likely to be many other
instances where children are born in similar circumstances where
same sex couples will be able to take advantage of these
legislative changes to record their children's legal
It should be noted, however, that regardless of who is recorded
on a child's birth certificate, under the Family Law Act
1975 (Cth), it remains open to any person sufficiently
concerned with the care, welfare or development of a child to make
an application for parenting orders. This means that a Court
exercising jurisdiction under the Family Law Act 1975
(Cth) may make orders for a child to spend time with a sperm donor
(and, therefore, a child's biological father), even if they are
not regarded as the child's "parent" and not recorded
as a parent on a child's birth certificate, provided the Court
considers this to be in the best interests of the child.
If you are doing a Will, or you are the executor of a deceased estate, consider what taxes and duties could be payable.
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