The
41-year-old mother had asked the Family Court to grant her sole parental
responsibility for the four-year-old girl, conceived via an anonymous sperm
donor, noting that her ex-partner was not listed as a parent on the child's
birth certificate.
But Family Court Justice Paul
Cronin disagreed ruling that the women "had equal shared
responsibility" for the child.
In deciding whether to let the
mother relocate the child from Queensland to NSW, Justice Cronin also took into
account the girl's relationship as a sister to the second woman's
eight-year-old daughter.
It was decided the move would not
be in the girl's best interests until she was old enough to understand and
maintain a long-distance relationship with her non-biological mother and
sister.
The complex case highlighted the
difficulties in dealing with separation of homosexual couples who have one or
more children with differing biological relationships.
"Much of the judicial
history about "relocation" cases has focussed on heterosexual parents
where biological connection was clear," Justice Cronin said in his
judgement.
"This case highlights the
reality rather than the abstract of a breakdown of a same-sex relationship into
which had been born children by artificial conception procedures to two
different mothers."
The court heard the mother and
her 39-year-old former partner, who cannot be named for legal reasons, were in
a committed relationship from January 2002 until early 2008 and lived together
in Queensland.
During that time the 39-year-old
gave birth to a daughter, now aged 8, via IVF using a friend's sperm.
Four years later, the 41-year-old
woman gave birth to the four-year-old girl, conceived via an anonymous sperm
donor.
In ruling the women had shared
responsibility for both children, Justice Cronin referred to a November 2008
amendment to the Family Law Act which states that if a woman becomes pregnant
through artificial insemination and she has a spouse or defacto partner at the
time of conception, then they are legally considered to be the second parent of
the child regardless of biology.
The law is applicable to both
heterosexual and lesbian relationships is only considered not relevant if the
woman's partner actively objected to his or her partner becoming pregnant.
While they lived together as a
family, the women both acted as parents to the girls with the children calling
one mummy and the other mumma, the court heard.
"There is no doubt that to
the extent that they can understand the concept, the children not only love
each other but also consider themselves to be sisters," Justice Cronin
said.
"Each child shows love and
affection towards their non-biological mother."
When the couple separated in 2008
each woman took custody of her own biological child, but the girls continued
seeing the other parent on alternate weekends and during school holidays.
Almost immediately after the
separation, the 41-year-old woman told her former partner of her plan to move
with the four-year-old girl to NSW for work and family reasons.
But, following Justice Cronin's
decision, she will be unable to do that until next year.
Justice Cronin ruled that that is
when girl, who will then be five-and-a-half, will be old enough to understand
her parents separation and be capable of maintaining a relationship with her
non-biological mother and sister who she will speak to weekly and visit several
times a year.
University of Sydney Law
Professor Patrick Parkinson said the case was an example of "biology being
irrelevant" when it comes to Family Law.
"Emotional reality is very
different to the legal situation," he said.
"Where there isn't a
biological connection (between the child and the other parent) it's very easy
to say this is my child, not ours.
"There are no easy answers
to these issues."
Professor Parkinson said there
were more cases of homosexual couples with children separating coming before
the court system.
"But overall there are still
only a small number of children living in families with same sex parents,"
he said.