When a Sperm Donor is a parent!
June 27, 2019
The High Court of Australia has just handed down Judgment in relation to a closely watched case determining that a Sperm Donor is in fact the father and legal “parent” of the child. This is a case we have reported on in the past and have been watching closely. We will be providing a full overview of the case and the decision once the Judgment is formally published.
Link to the article here!
Family Law Courts Merger Fails!
April 5, 2019
In breaking news, the proposed court merger bills have failed to win support of the Senate and have not been passed into law.
The Government did not bring the bills before the Senate this week, having failed to win the cross-bench numbers needed to gain passage of the legislation.
The Law Council of Australia and its Family Law Section have long campaigned that Australian families will be better off with a stand-alone, specialised Family Court.
Law Council President, Arthur Moses SC, said the deeply flawed model had the potential of putting vulnerable families and children at risk of inadequate legal outcomes.
“The Family Court is a vital cornerstone of our legal system. Its work is highly specialised and it deals with some of the most difficult and complex family law matters,” Mr Moses said.
“We applaud the crossbenchers who took the time to listen to our reasoning, considered this advice, and came to the decision that this was not the right way forward for Australian families and children.”
Mr Moses said the Government’s perseverance in trying to ram the merger through parliament was ill conceived.
“Merging one court with another does not address significant underlying issues, including chronic underfunding and under-resourcing, which have led to crippling delays, pressures and costs.
“There is no doubt the family law system is in need of reform but this was not the way forward. Our courts need much more funding than they currently receive, and more judges, registrars and counsellors must be appointed.
2019 Family Law Courts Changes
March 13, 2019
The proposed changes to the Family Court system was well discussed in the media in 2018. The Senate Legal and Constitutional Affairs Committee has now released its report providing their recommendations in relation to the proposed changes to the structure of the Family and Federal Circuit Courts.This report was released 2 months ahead of schedule and overall recommended that the proposed Federal Circuit and Family Court of Australia Bill 2018 and the Family Court of Australia (consequential Amendments and Transitional Provisions) Bill 2018 be passed by the Senate subject however to a series of amendments being made. The recommendations made by the Committee included 1. Additional resources for Registrars to assist with backlog of cases 2. That the current existing appellate jurisdiction of the Family Court of Australia be retained into the Federal Circuit and Family Court of Australia 3. That the qualification of judges as per the proposed paragraph 79(2)(b) be amended to ensure that they have appropriate skills, knowledge, experience and personality 4. That the Australian Government pursues immediate appointment of suitable candidates to vacant judiciary positions in the family courts and consider if there is a need to appoint additional judges. Please click on the link to read the full report https://www.aph.gov.au/…/Legal_and_Con…/FederalCourts/Report
Amendments to Cyber Bullying Laws
February 5, 2019
The Legal Aid NSW Domestic Violence Unit (DVU) has continued its valuable work in highlighting the risks posed by new technology for the victims of domestic and family violence in a recent submission to the Australian Human Rights Commission. This follows recent amendments to the Crimes (Domestic and Personal Violence) Act 2007 to expressly include cyberbullying in the definition of ‘intimidation’, and extend the definition of ‘stalking’ to include contacting or otherwise approaching a person using the internet or any other technologically assisted means. Behaviour like posting threatening or hurtful images or videos online and repeatedly sending unwanted messages or abusive emails is included in this change. If perpetrators do not stop, they face arrest and possible imprisonment of up to five years.
The Australian Human Rights Commission released an issues paper calling for contributions about the rapid rise of new technology and what it means for human rights. The Legal Aid submission stressed that while there are obvious benefits of technology for victims of domestic violence, such as increased safety, access to information and connection to friends and community, the intentional misuse of technology poses significant risks and raises issues of human rights.
The DVU is currently developing a national website with legal information and practical help with domestic and family violence, family law, child protection and Apprehended Domestic Violence Orders. The website will also include content on technology-facilitated domestic and family violence and staying safe online.
For helpful tips on technology safety, see the eSafety Women and 1800 RESPECT websites.
WESNET and Telstra’s Safe Connections program offers free Telstra smartphones to women who have experienced domestic and family violence. For more information, call 1800 WESNET (1800 937 638).
For help with safety planning generally, you can call the DV Line (1800 656 463) or 1800 RESPECT (1800 737 732).
Family Court Chief Justice Calls for Commercial Surrogacy to be Legalised
May 30, 2015
Chief Justice Diana Bryant has called for the immediate legalisation of commercial surrogacy. Chief Justice Bryant spoke of two recent cases being in India and Thailand which caused outrage around the world.
Chief Justice Bryant said: “ I personally think we should regulate and allow commercial surrogacy in Australia … If we allow it in Australia, we then can regulate it and ensure that it’s done on ethical terms.”
It is illegal in Australia to pay a person to carry a child for another, except in the Northern Territory, but couples desperate for children continue to break the law. “Twenty-five per cent of the international surrogacy arrangements in the world are contracted by Australians,” Chief Justice Bryant said.
“Friends With Benefits” not a de facto relationship
November 30, 2014
The Federal Circuit Court in Queensland has found that a homosexual couple who lived together for seven years and engaged in occasional sexual contact was not in a bona fide de facto relationship.
Judge Coker delivered the judgment in early November 2014. The decision will be very welcome for persons that engage in casual sexual encounters but do not consider themselves in a domestic relationship with that other person. Under Section 4AA of the Family Law Act 1975, the circumstances which may prove that a De facto Relationship exists includes:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
The Court will consider these factors and weigh these against the evidence in each individual case when making their decision.
New Recommendations Could Change Surrogacy Laws
August 30, 2014
The Attorney-General George Brandis released a report on 14 August 2014 by the Family Law Council which has advised the Federal Government that children should be allowed to have more than two legal parents.
With the increase in modern medical technologies, more people are taking advantage of surrogacy arrangements and IVF procedures to become parents. The report states that “the use of reproductive technologies and surrogacy to create families has also increased the number of potential parents that a child may have, including a mix of genetic, gestational, social and intending parents.”
The Council has recommended that the definition of “Parent” be amended to include term “parent and other significant adults”. They have also recommended that the law should provide scope for the recognition of more than two people to have parental responsibility for a child where that reflects the social reality of that family and that parenting orders be granted to more than two persons where that supports the child’s best interest.
As the law presently stands, surrogate mothers are considered the legal parent of the child, rather than the person who provided the egg to the surrogate. This issue has become the focus of much media attention recently due to the case of “Gammy” the young boy who was born with Down syndrome to a Thai surrogate. The report calls for commonwealth legislation to clarify that sperm donors, egg donors, or surrogate mothers are not legal “parents” by changing the Family Law Act to clarify that donors of genetic material are not legal parents. Australian parents who use their own embryos, sperm or eggs in surrogacy however, should be recognised as the legal parents of surrogate children.
“Council is conscious that the amount of children conceived as a result of overseas commercial surrogacy arrangements has increased dramatically in the past several years despite the existence of Australian laws prohibiting such arrangements…As a consequence it would seem that a large number of young children are growing up in Australia without any secure legal relationship to the parents who are raising them.
The council recommends the Family Court should be given new powers to transfer legal parentage from the surrogate parents. A judge would need to be satisfied that the surrogate mother had given her full and prior informed consent as some surrogate mothers overseas have used a thumbprint to sign a contract. It recommends the government introduce a status of children act to help the Family Court determine the parentage of children born through IVF and surrogacy.
The council also supports a wider definition of “parent” in indigenous communities to embrace aunts, uncles or grandparents raising the children. It calls for legalisation of the customary adoption practice of Torres Strait Islanders known as kupai omasker.