Passports, immigration & travel
When I applied for a passport for my daughter in 2011, the form had spaces to list “mother” and “father”. The instructions specifically said that you were not allowed to change the form. I phoned the passport office and explained that my child has two mothers and asked what I should do. The person I spoke with said I needed to make an appointment at the passport office and bring my daughter’s birth certificate with a signed letter from both mothers consenting to the application. This made the process long and arduous, particularly since both of us are legal parents according to the NSW Registry of Births, Deaths & Marriages and it was another government agency that wouldn’t accept that on face value.
In 2011, the U.S. State Department updated passport applications to refer to “Mother” or “Parent 1” and “Father” or “Parent 2” instead of just “Mother” and “Father”.
Recently, the Department of Foreign Affairs and Trade updated the passport application process, which is now available online. This process removes the option of 'mother' and 'father' only. In the new process, each parent with parental responsibility can specify their relationship to the child.
With the federal same-sex legislation reforms in 2009, lesbians in de facto relationships are recognised for the purposes of immigration in the same way as heterosexual couples (with the exception of the prospective marriage visa). The full visa range is open to lesbian couples and their children if they can satisfy the standard visa requirements.
The Migration Act
The Migration Act 1958 (Cth) provides for new de facto regulations recognising lesbian couples and allows for partner visas of Australian citizens or permanent residents to come and live or remain in Australia.
Requirements for a defacto relationship
You should consult with a migration lawyer or agent to seek specific advice if you are making a de facto spouse visa application. Generally, the de facto requirements are:
Two people who are not married or related by family; and
Have a mutual commitment to a shared life to the exclusion of all others; and
Have a genuine and continuing relationship together; and
Live together, or do not live separately and apart, on a permanent basis.[i]
A de facto relationship must exist for at least 12 months for most visa categories before a visa application can be made. This time period may be waived if your relationship is registered under a recognised state or territory scheme or if there are compelling and compassionate circumstances for the grant of a visa (e.g. to have a child or for protection reasons).
How to prove your relationship
To prove your relationship, you may need to get documents, photos, plane or concert tickets, printouts of emails, and letters. You can ask your family and your friends to assist in writing letters confirming your relationship and obtaining any evidence they may have to prove your relationship. The proof must show the relationship is genuine and continuing.[ii] This means that you are honestly in a de facto relationship which is ongoing.
Other documentary evidence can include:
Copy of your lease in both names;
Copy of bank account statements in both your names; and
Copy of joint email or other accounts.
But this may not be enough, as the relationship must be proved to be genuine and continuing and more papers may be necessary for this purpose. A joint property lease is a good start, but this is not always available. A joint bank account is a good way to show financial sharing, but not much weight can be placed on it if the account is empty or does not have any transactions, so other evidence should be presented. Even the application forms may be confusing; this happens in particular with dates relevant to the relationship, as the couple may not be sure about the meaning of the questions.
You may want to hire a migration agent to help you and your partner complete the application and gather together compelling evidence for your application. The visa application is expensive, at a cost of almost $7,000. Although hiring an agent will increase the cost, it reduces the likelihood of having to file your application again.
Your sponsor (your partner) must be an Australian citizen, a permanent resident, or eligible New Zealand citizen, and your relationship must be a marriage or a registered relationship, or you need to have lived together for at least twelve months.
Once you lodge your application, it usually takes twelve to eighteen months to receive an answer. At the end of this time frame, the Department of Immigration may even require further evidence of your relationship.
Travelling overseas with children
It is very important that you check the laws of the country you are travelling to, in relation to their stance on lesbian relationships. Same-sex relationships are still illegal in some countries.
Go to this website for a breakdown of the laws relating to sexual orientation: http://ilga.org/what-we-do/lesbian-gay-rights-maps/
Be aware that if you are travelling overseas with your children, you may need to show your child’s birth certificate to show you are the parent of your child. If you have two mothers listed on their birth certificate, then it will be evident you are, or were in a same-sex relationship when your child was born and a country may not allow you to enter because of this. If you are not listed on your child’s birth certificate, then you may have an issue travelling with your child.
If you are travelling to a country where same-sex relationships are not accepted, or even illegal, then you should not show public displays of affection and limit your social media posts. Also think about what type of clothing you are wearing as some countries require women to dress modestly, covering arms and legs.
Before you book your trip, you should contact the Department of Foreign Affairs to find out if your chosen country has any issues with same-sex relationships or parents. If you decide to travel, then you should register your details with Smart Traveller in case of an emergency.
Migration & children
Children of lesbian parents are generally treated as a family for the purposes of migration law.
Children born overseas, particularly in surrogacy arrangements, may obtain citizenship by descent where at least one of the intended parents is an eligible Australian citizen.[iii] This means that the child does may not have to obtain a visa to enter Australia and the parents may apply for an Australian passport.
The question of who is considered a parent is not a standard formula in citizenship cases, and if neither parent is biologically related to the child, visa options may be extremely limited, especially for lesbian couples.
For more information, visit the Department of Immigration’s website at https://www.border.gov.au or contact a Migration Agent or immigration lawyer.
Summary of Main Points:
Lesbians in de facto relationships are recognised for the purposes of immigration in the same way as heterosexual couples (with the exception of the prospective marriage visa).
Contact the Department of Foreign Affairs and Trade if you think you are travelling to a country where same-sex relationships are not accepted, to check that country’s local religion and social practices.
To sponsor a partner who wants to immigrate to Australia, you must prove your relationship is “genuine and continuing”, at least 12 months of living together plus documentation such as joint accounts, property lease, plane tickets, phone bills, letters from friends and family attesting to the nature of the relationship.
It is best to hire a migration agent or immigration lawyer to assist with your case since it can be difficult to prove the “genuine and continuing” aspect of your relationship.
An application for migration will generally cost around $7,000.
[i] s 5CB of the Migration Act 1958 (Cth)
[ii] Reg 109A Migration Regulations 1994 (Cth)
[iii] s 16 Australian Citizenship Act 2007 (Cth)
Note to readers: This information is intended as a guide to the law and should not be used as a substitute for legal advice. While every effort has been made to ensure that the information contained here is as up to date and accurate as possible, the law is complex and constantly changing (particularly relating to same-sex parenting) and readers are advised to seek legal advice in relation to their situation.
If you need legal advice, please contact Nicole Evans from Nicole Evans Lawyers at email@example.com.