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E44: Same Sex Separation: Property and Parenting Disputes

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On the Show Today You’ll Learn

Ben and Heather discuss same-sex separation together with clinical psychologist Dr. Catherine Boland.  The founder of Relationspace, a team of skilled professionals helping people going through divorce to better manage their circumstances and protect the psychological health of their children, Catherine is ideally placed to provide insights into the social science side of separation.  While Heather answers the more technically legal questions.

The team cover the following topics and questions:

  1. At what point does a same-sex relationship become recognised as a de facto relationship
  2. Does the Family Law Act treat same-sex couples any differently than heterosexual couples when it comes to property settlement disputes?
  3. How does the law treat a non-biological parent when a same sex family separate?
  4. Does biology create emotional/psychological barriers to reaching parenting agreements between same sex couples?
  5. When it comes to the fundamentals of “in the best interest of the child” does the Court view same-sex couples any differently than heterosexual families when making parenting decisions?
  6. What if a lesbian couple has a sperm donor who has been involved in the life of the child? Does the sperm donor have parenting rights post-separation?
  7. If a same-sex family includes children from a previous heterosexual relationship, does the step-parent have parenting rights?

Links & Resources Mentioned in This Episode

Relationspace Sydney-based support for families experiencing divorce, separation and family conflict.  They offer a wide range of services for parents, children and families.

Relationspace Online is an e-therapy program for parents going through a high-conflict separation.

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Full Episode Transcript

Welcome! Same-sex separation: property & parenting disputes

Benjamin Bryant: Welcome to episode 43. I’m Benjamin Bryant from Bryant McKinnon Lawyers and I’m here in our little office studio with my partner and family law expert extraordinaire, Heather McKinnon. How are you today, Heather?

Heather McKinnon: I don’t know if I’m extraordinaire today, Ben, but I’m really looking forward to today’s show.

Benjamin Bryant:  Yes, I’m looking forward to the show, too, because today we are discussing what can be quite a tricky area of family law, and that is parenting and property disputes in a same-sex separation. The idea of a same-sex relationship wasn’t even contemplated when the Family Law Act was first published in 1975. Since that time, both our culture and our laws have changed a great deal. For the most part, same-sex relationships are now considered the same as heterosexual relationships under the law. But particularly when it comes to separation, there can be complications in same-sex relationships. So in today’s show, we are going to try and clarify things. To help us do this, we welcome our very special guest, clinical psychologist Dr. Catherine Boland.

Benjamin Bryant: Catherine is the principal and founder of Relationspace, a team of skilled professionals helping people going through divorce to better manage their circumstances and protect the psychological health of their children. She has years of experience as a clinical psychologist working in hospital, educational and community settings with children and parents experiencing relationship issues. She’s an accomplished speaker, media commentator, author and clinician who understands the complex reality of child and adolescent mental health. Catherine now dedicates her time to Relationspace and has authored and presented Relationspace Online, a child focused, evidence based psychological intervention for parents engaging with the family law system in Australia. And we are lucky enough that Catherine has managed to find the time to be our guest on today’s show. Welcome, Catherine, and thank you so much.

Dr Catherine Boland: Thanks Ben. It’s my pleasure to be here.

Benjamin Bryant: Thank you. And just quickly, before we get started, I need to remind our listeners to share this show with friends and family starting down the path of separation or divorce. We’ve got a huge library on a wide range of subjects with world class experts. So please share this with your friends and family who might benefit and in particular share the episode with any same-sex couples who may benefit.

About Dr Catherine Boland & Relationspace

Benjamin Bryant: Catherine, before we delve into today’s topic, can you give us a bit more information about Relationspace and the services that you provide?

Dr Catherine Boland: Sure Ben. So first and foremost, we’re a psychological and mental health practice and that means we help people and we help parents and children who are going through high conflict, divorce and separation. Two separate phases, I suppose. First of all, to help parents cope with all the changes that happen around separation, dealing with their own grief and loss and changes, but then helping them become better parents and transition to becoming the best co-parents they can be for their children. So we do therapy, but we also have a range of experts when it doesn’t go well and we provide expert opinion to parents, to lawyers and to the Family Court about making arrangements that are in children’s best interests. So we do clinical and forensic work. Very busy practice.

Benjamin Bryant: And I know it’s almost impossible to list all of your services that you offer in a little paragraph response there, because I’ve been to your website and I know there are many services that you offer and I encourage our listeners to go to your website because it’s clearly set out what services you provide and there are a lot of them and we’ll put a link to your website on the podcast web page.

When does a same-sex relationship become recognised as de facto?

Benjamin Bryant: Before we start talking about same-sex separation. Catherine, Let’s clarify what constitutes a same-sex relationship in family law. Heather, at what point does a same-sex relationship become recognised as a de facto relationship?

Heather McKinnon: So there’s no differential under the Family Law Act between heterosexual and same-sex relationships. So the test is the same. That is, people who have been living in a marriage-like relationship for a period of two years are recognised as being in a de facto relationship under the act. The only rider on that, I’d say, is that in my age group it’s often more difficult to define when that period starts. One of the things that we look at in working out when a de facto relationship commenced is the public recognition of the relationship. And in my generation, a lot of same-sex couples did not have that public recognition of the relationship. So they, for example, didn’t engage with one family who may have rejected them. So where you would have things like evidence of going to 21sts and weddings and that it can be a bit more complicated. Certainly as the culture has moved on, it’s rarer to find those situations. But in my generation there was a distinction because often the public nature of the relationship wasn’t there because of obvious problems within the culture of the way we dealt with same-sex couples. But nowadays, if you’ve lived together for two years, you’re in the boat like everybody else and the Family Law Act determines what happens if it goes wrong.

Benjamin Bryant: And that’s de facto relationship, Heather. I just love what you said with the public recognition because of course, from the 9th of December, 2017, same-sex marriage was recognised in Australia and you can’t get any more public recognition than that. So when I hear the prejudice still that exists in our community, I’m just baffled by it. I’m just like, you know, same-sex couples can marry, right? Like, it’s here, get over it.

Do same-sex couples face different issues to heterosexual couples on separation?

Benjamin Bryant: And Catherine, Relationspace deals with all kinds of couples going through a relationship breakdown and divorce. From your experience, are there issues faced by same-sex couples that are different from those experienced by heterosexual couples? Or is a break up a break up?

Dr Catherine Boland: Well, A break-up is a break-up, and we’re all human. And so first and foremost, I think the emotions, the psychological experience, the circumstances of that break-up determine our reactions to it. So humans are humans. It doesn’t matter whether you’re gay, straight, trans, whatever, whatever your identity is. But there are unique factors about same-sex relationships when they break up, and particularly when they involve children that make the issues more complex than heterosexual relationships. And I think the factors are that when there are children involved in a same-sex relationship, there’s invariably other genetic material that has been used to create those children. And so you sort of have this decoupling, I guess, of a parenting role and a genetic relationship with a child that’s quite unique and can sometimes rear its ugly head when couples separate. So what can sometimes happen when things go badly is that whilst the couple might have thought that biology wasn’t important when they were an intact family unit and a parent is a parent regardless of gender or biological relationship, when that couple separates, suddenly biology becomes very important.And especially when a biological parent starts to sort of thrust the importance of biology and regard the other parent as a sort of unwanted intruder into the family.

Dr Catherine Boland: Another complexity is that sometimes if the couple is a lesbian couple that they have used a known or an unknown donor to create their children, and the role relationship expectations of donors can sometimes become very important in a separation. And what sort of role was originally expected of that man in this case in that child’s life may not be what eventuates. There can be feelings of feeling threatened from the parent couple and feelings of being excluded, but from the donor.

Dr Catherine Boland: Now starting to see, unfortunately, separations of gay male couples where the children or child has been conceived by a surrogate. And there’s lots of different ways children can be created. So this just adds a level of complexity when they separate. If one man is the biological parent of these children and the other isn’t, what’s the role of that non-biological parent and how does that arise at separation?

Dr Catherine Boland: I think in general, like any human, your expectations of parenthood can be quite fantasy like and quite different to what happens when you actually become a parent. And if that relationship ends, these feelings and emotions can make transitioning to peaceful co-parenting very difficult. And finally, having to explain your family structure and your role in a child’s life to the public (other people), as much as we said before, same-sex relationships are generally accepted and I believe they are, there are nuances about being a same-sex parent that I think the experience is having to explain yourself or the child has to explain who this person is, why they’ve got two mums or two dads, and particularly when that becomes more complicated, when they’ve got step mums and step dads and the two different households.  They’re the complexities I see, which was quite a lot. I’m sorry.

Benjamin Bryant: No, it’s great. And I just love it can be summarised humans are humans. I love that. And you gave the examples about where the complexities or the difficulties can arise with issues such as paternity. But it is true for all couples where something taboo in a relationship or something where it’s us against the world, that something after separation becomes ammunition. it’s gloves off. So whatever the issue is, it is true for all couples. What is taboo? What is us against the world absolutely becomes ammunition. It’s used against them later on.

From a property division perspective, does family law treat a same-sex relationship the same as a heterosexual one?

Benjamin Bryant: And Heather from a property perspective, does family law treat a same-sex relationship the same as a heterosexual relationship, or are there differences that people should be aware of.

Heather McKinnon: They’re absolutely the same. So that equality of status was a hard fought sort of battle. So when I left law school in the early 80s, we didn’t recognise de facto relationships, let alone same-sex. Then we recognised heterosexual de facto relationships. Then we recognised same-sex de facto relationships and we’ve now moved on to recognise marriage as between two adults in Australia. So it’s been a long, slow progression for the culture to catch up with what was happening in the community. But it’s exactly the same. So if you want to know what your rights are as a member of a same-sex relationship whether married or de facto, go back through the podcasts. When we talk about property settlement, same deal for everybody. So get on board. There is no difference.

Benjamin Bryant: Absolutely. And I think even our next podcast will be on property settlement Heather, so our listeners can tune in for that.

How does family law treat a non-biological parent when a same-sex couple separates?

Benjamin Bryant: So let’s talk about parenting arrangements, because this is where things can get a little bit complicated for same-sex couples. Heather The Family Law Act defines a parent as one that is either the biological parent or legally adoptive parent of a child. Where does this leave a non-biological parent in a same-sex relationship?

Heather McKinnon: So even though those definitions are rolled out, basically a parent under the Family Law Act is someone where there is a real strong parental attachment. So you can talk about all sorts of definitions of what makes a parent. But in the end, we remember that Family Law Act says what’s best for the kid. So we’ve got all these competing claims. As Catherine said, there’s been some high court decisions about biological males who have provided the sperm for the creation of the child. Are they a parent under the Act? They’re biologically a parent. But then when we talk about what happens in terms of the child, all that goes out the window, because what we’re looking at is who is the important parental figure for this particular child. So all sorts of non-biological relationships can be deemed parental relationships. So, the non biological partner can be that child’s parent and that’s very clearly established over now decades. And that’s a lot of the work that Catherine’s experts do, is having a look at where the child’s attachments are, where are they nurtured. And the provision of biological material really is only a tiny part of that. It’s more about the child’s view of the world and where they feel safe.

Benjamin Bryant: And I think you’re right. Heather. This is the intersection between the law and the social science, because, of course, there’s parentage versus parenting. And I’m sure Catherine could spend a lot of time talking about the differences and what that means to people. But of course, what you’re talking about is the parenting. In the end, the court is here for the best interests of children and is taking a child-focused approach. So although the parentage can be a little bit tricky, it doesn’t really matter in the end. It’s not the biological connection,

Does the fact that only one parent is the biological parent create emotional barriers on separation?

Benjamin Bryant: Catherine, when it comes to mediation and dispute resolution, does the fact that only one parent is the biological parent create an emotional or a psychological barrier to reaching an agreement?

Dr Catherine Boland: Well, it can and it frequently does in high conflict cases. So many parents just sort this out. So if they’re a same-sex couple and they’ve both parented these children and they have an attachment bond with the child, very sensibly, many people will just say, of course, we’re both parents and important people to this child. And so we have to come up with a parenting arrangement or living arrangements that are going to respect and honour those important attachment bonds for the child. But when couples are in high conflict or haven’t been able to solve it, this is where I see biology rearing its ugly head. And mean that in the most respectful way, because I think children do have a right to know and understand their genetic heritage. But I think it’s what you were talking about earlier, Ben.  When people are suffering and they feel anxious and threatened and remember people whose lives are falling apart, whose relationships are falling apart frequently do feel threatened and scared and anxious. And they will then sometimes kind of cling on to inappropriate tools to cope, inappropriate ways of trying to exert control. And biology is a really obvious division. Sometimes it’s been there from the get go. Sometimes the couple haven’t managed to very well share the attachment and the parenting, right from the very beginning, where the biological parent has assumed within the intact relationship that they’re more of a true parent than the other parent.

Dr Catherine Boland: And so that can arise at separation. But also I think there’s a vulnerability for the non-biological parent in some same-sex relationships. Particularly some of those things I was talking about earlier, explaining who they are in the child’s life. Like, are you the other dad? I thought, you know, James already had a dad. So the public or other people will ask questions. And a really obvious first question is, who gave birth to you? And so these things, if they’re not psychologically dealt with, can really arise at separation and create a false sense, I think, that one parent is more important or significant than the other based on biology rather than on the child’s attachment, the personalities and the parenting skills of each of the parents. And the research is really clear that the non-biological parent, especially in the early stages, does feel quite vulnerable. I think things have improved a lot. I do have to say. I saw these sort of cases maybe ten years ago. I think that since the law has changed to now recognise it. You know, for example, two people of the same-sex can be on a child’s birth certificate, that that’s really assuaged some of the anxiety, but not all of it, of course. And it’s different in different parts of Australia.

Benjamin Bryant: That’s what I was going to mention, the birth certificate, Catherine, because in some respects it’s just a piece of paper, but for other people it’s the world. That could be the difference between being able to resolve the matter and moving forward in an effective way.

Does the Court view same-sex and heterosexual families any differently when it comes to determining “the best interests of the child”?

Benjamin Bryant: Heather I’m going to ask both of you and Catherine this question. I’m going to start with you first. The fundamental consideration, as we know, in the Family Law Act, is the best interests of the child. Does the court view same-sex couple families any different than heterosexual families in that regard?

Heather McKinnon: Legally, no. So the question that really arises is where are the attachments? So what I see in a lot of these complex situations is that the child may actually have three attachments or four attachments. So you’ll have, say, the lesbian couple with an open sperm donor situation where the adults have decided that the child will have a very strong sense of where they come from. And so they will have two mums and a dad. And so when there is a separation, it’s more complex for that child, in that there may be a time sharing arrangement that’s more complex across more adults than you would normally have present. Although in saying that, we often deal with children who have attachments to grandparents and natural parents, and it really is a situation where I’m of the strong view this is in the field that Catherine is in. It’s the child consultants and the child experts that really have to guide the judicial officer because these little ones will often have a sense of their identity that is more complex than a child who has two biological parents, for example. In saying that, I see the same in heterosexual couples, where they’ve gone through artificial means of reproduction so that the one who’s biological material’s there feels secure and the other one doesn’t. I mean, I think senses of identity and genetics and that are core of humans and this is a really, really complex field. I just went to the Isle of Skye to the cemetery where McKinnon came from, from the 1600s, looking at my genetic material and thinking, I know where I came from. A lot of the little kids that I see can only go back a generation. I’m convinced that it’s a core need in a human. But this field is something that we’re only in the first decade of understanding as lawyers. And the social scientists are the ones who have got to teach us what a kid needs.

Benjamin Bryant: And so Heather you say any difference between heterosexual and same-sex couples may be more the social construct rather than how the law determines what’s in the child’s best interest. Catherine, would you agree with that or have you got something else to add?

Dr Catherine Boland: Yeah, I think I have to say that I think my experience of the court and giving expert evidence and dealing with some of the judgements and outcomes has been that the court has in recent years been fantastic in understanding that of paramount concern is the child’s best interest and paying a lot of attention to the attachment relationships. The parenting skills of each parent is an important part of that. The child’s attachment is very important, but children can be attached to people who might not necessarily be able to parent them in the way that they need. And I think Heather’s comments are spot on about a child’s right to have knowledge of their genetic heritage is something the court has always, been mindful of respecting. what I’m watching very carefully these days is in Australia, the sort of lesbian baby boom of the 1990s 2000s, which is when there was a really increased prevalence in the birth of children to same-sex, largely female couples. Those kids are of course now adults and many of them are becoming, vocal in wonderful ways about what has worked for them, what didn’t work for them.

Dr Catherine Boland: These are obviously intact families largely, but also some in separated. And overwhelmingly, they want to know who their donors are and were and want to have access to those people. They want to have access to any genetic siblings. And, it’s all very well and proper and right for us to be doing these things. But most kids now, if they want to find out who their donor is, they will just jump online and get a genetic test in the mail. And so their use of technology finding one another and finding what they need is completely catapulting our legal system and our social science system of sort of following up with them. So they are leading the way. But the message is resounding. We have a right to know where we come from. As Heather said, that’s a fundamental human drive. And so I think the court has been right in paying attention to that. Amongst other things, secrets are never a good idea.

Does a sperm-donor have “rights” when it comes to parenting post-separation?

Benjamin Bryant: Indeed. All right, guys, we’re going to spend the last couple of minutes I’m going to ask you a couple of questions about specific  examples of what complexities can arise for same-sex couples. What if a lesbian couple has a sperm donor who has been involved in the life of the child? Does that sperm donor have rights when it comes to the parenting post-separation. Heather, let’s go with you first.

Heather McKinnon:  Absolutely. If, as Catherine says, they have shown excellent parenting skills. So just because you’re the sperm donor, you don’t get a lucky ticket. But if you’ve been a really important parent for the child and you have skills that that child will benefit from going forward, you get a lucky ticket. And again, that’s why the judges rely so heavily on Catherine’s profession, because you’ll have, in these cases, 3 or 4 adults that are all wanting a piece of the kid. And the complex job is, what piece does the kid need of each of these adults?

Benjamin Bryant:  If this issue is particularly important to our listeners, I encourage them to check out Section 68 of the Family Law Act. It is gendered. And what it’s trying to do is catch up with the times, trying to oust sperm donors, as it were. It talks about parents and intended parents and consent and artificial conception procedures and how they’re defined and all these complicated things. And essentially it’s trying to get the intention of the parties formalised and out the person that’s provided the genetic material, if we can say that. Catherine, do you have anything to add about your experience with sperm donor families are they in are they out? What’s your experience there.

Dr Catherine Boland: It’s changed over time. Ten years ago, I think most lesbian parents were terrified of the scenario that you’ve described where a sperm donor would swoop in and sort of claim parental rights, which is obviously not the language we use. I think the terror came from, years of subjugation and feeling insecure that they wouldn’t be recognised as the child’s parents and that biology would trump to the outside world, particularly the role of the non-biological parent. I think that’s lessened over time and I think there’s a much better, both within the profession and in the community, understanding that same-sex parents are much more common and it’s actually the role that you play in that child’s life. If you are known as dad and you come to day-care as dad and you do the tuck shop and you do the face painting, you’re at the fair and you do all the daily grind and you’re known in that child’s life and in the community as a parent, no matter what you are called, then I think it’s understood and accepted that even if there is a fallout in the adults, that role is really important, that that continues.  So I think it’s a social parentage and the attachment bonds that we now understand are most important for children. And whether or not the adults can protect the kid or kids from conflict. It’s all very well for us to say, yeah, this is really important, but if to do that introduces a whole level of toxic conflict around the adults, then that’s another risk factor that someone like me and the court will have to balance out.

If a same-sex family includes children from a previous heterosexual relationship, does the stepparent have parenting “rights”?

Benjamin Bryant: Absolutely. We’re running out of time. So I’m going to ask one more question quickly. What if a same-sex family includes children from a previous heterosexual relationship? Do the stepparents have rights here? Heather?

Heather McKinnon: Absolutely. Even in a regional area like this, I’ve had those cases both as an ICL and as a lawyer for parents. Again, it’s about the attachment. So you’ll often have, children who come into the new family in primary school and they will incorporate all of those adults. So the heterosexual couple who had children will then separate and there’ll be new relationships formed and the children transition between those families. If a step parent is important to a child, then the court will protect that relationship if it’s in the child’s best interest. So we come back to what Catherine is talking about. We’ve got to balance conflict which is toxic, with what the child needs to feel that they’re fully nurtured by everyone who’s important to them.

Benjamin Bryant: And Catherine, you mentioned before, it’s not the language that we use because, of course, parents don’t have rights, nor do stepparents. Children have rights to have a meaningful relationship with their loved ones, essentially. Do you have anything to add in respect to the step parenting and children relationship?

Dr Catherine Boland: No, I agree entirely with Heather. I think it’s child focused and exactly the same regardless of the sexual orientation of the parent or step parent.

Benjamin Bryant: Well, thank you. And wow, I think this episode has really helped to clarify things for same-sex couples wanting to separate or divorce. And Catherine, thank you so much for helping us tackle this tricky topic.

Dr Catherine Boland: My pleasure. Thanks for having me.

Benjamin Bryant: Thank you. And Heather, this is one of those shows that I really think is going to be a critical resource for some of our clients and for many people in our community and of course, beyond.

Heather McKinnon: I agree. So much has changed in the last decade. It’s hard to keep up. I think this program is really important and it’ll really help the parents of my generation whose kids are in this brave new world to understand that it’s okay and everybody now is on the same page.

Benjamin Bryant: And very true Heather and things keep changing, so we’ll have to make a note to come and check in on this issue from time to time in the future.

Benjamin Bryant: Next month, we’re going to hone in on the topic of a property settlement. We get so many questions every day on this topic, both from our clients and sent in to the podcast. So next month, Heather, you and I are going to answer the top property settlement questions. If you have questions related to property settlement, now would be a great time to share them. Please send your questions to familymatters@bryantmckinnon.com.au or message us on Facebook. We will endeavour to ensure that your question is answered on the show either next month or in future episodes.

Benjamin Bryant: We’ll put a link to Relationspace and any other resources mentioned in today’s show and a full transcript in the show notes on our website. And don’t forget, please share this show with friends and family who may benefit. We hope to have your eyes again next month.

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