Wednesday, 30 July 2008

Lesbian, Gay, Bisexual, and Transgender Groups Gain Consultative Status

The decision by the United Nations Economic and Social Council (ECOSOC) granting consultative status to two groups that work on sexual orientation and gender identity is a victory in the ongoing struggle for inclusion at the UN, a coalition of six human rights organizations said today. The two groups approved on July 21 and 22, 2008 are COC Netherlands and the State Federation of Lesbians, Gays, Transsexuals and Bisexuals of Spain (FELGTB), national organizations representing LGBT people in the Netherlands and Spain.

This vote ensures that two more voices will be raised to defend basic human rights at the UN.

“COC Netherlands is delighted about obtaining consultative status with the UN,” said Björn van Roozendaal, COC international advocacy officer. “It means we can join the efforts at the UN to address human rights violations against people with an alternative sexual orientation or gender identity.”

“Spanish-speaking LGBT voices will be heard in UN meetings where human rights questions are debated,” said David Montero, FELGTB Spain’s officer for international issues and human rights. “We thank all who have contributed to this exciting outcome, and especially Spain’s UN mission for their support.”

Consultative status is a key means for civil society to access the UN system. It allows nongovernmental organizations (NGOs) to deliver oral and written reports at UN meetings, and to organize events on UN premises. With it, these groups can share their information and analysis of the abuses and discrimination LGBT people confront around the world.

ECOSOC, consisting of 54 member states of the UN, grants consultative status to NGOs after reviewing recommendations made by its subsidiary body – the NGO Committee – which screens the applications.

The oldest LGBT organisation in the world, COC Netherlands,and FELGTB Spain join approximately 3,000 other NGOs with consultative status at the UN. However, only a handful of LGBT groups have received the status. In recent years, some states have treated LGBT groups’ applications with intense hostility, and ECOSOC has only granted such groups consultative status after first overturning negative recommendations from its NGO Committee. ECOSOC approved the Danish National Association for Gay and Lesbians, the European Region of the International Lesbian and Gay Association (ILGA-Europe), and the Lesbian and Gay Federation in Germany in December 2006. The Gay and Lesbian Coalition of Québec and the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights gained consultative status in July 2007.

The US-based International Wages Due Lesbians and Wollongong-based, the wonderfully named Coalition of Activist Lesbians (COAL) have had consultative status at the UN for more than a decade.

At its January session, the committee tied 7-7 on consultative status for FELGTB Spain, meaning the motion to recommend it failed, but at the following session in June it voted 7-6 to grant the status for COC Netherlands. At the July session in New York, ECOSOC adopted by consensus the recommendation on COC Netherlands and voted to overturn the recommendation not to grant status to FELGTB Spain.

“ECOSOC has recognized the place of lesbians, gays, bisexuals and transgender people in the work of the United Nations,” said John Fisher from ARC International, which supported the groups’ advocacy efforts. “In this 60th anniversary year of the Universal Declaration of Human Rights, it is particularly important to affirm the core principle that all human beings are entitled to the full enjoyment of all human rights, without discrimination based on sexual orientation or gender identity. Yesterday’s vote sends a clear message that discrimination has no place in the UN system, and that sexual orientation and gender identity issues can, and must, be addressed.”

“Many states that harass or persecute LGBT people at home also try to shut down scrutiny of their records internationally,” said Boris Dittrich, advocacy director of the Lesbian, Gay, Bisexual and Transgender Program at Human Rights Watch. “This vote ensures that two more voices will be raised to defend basic human rights at the UN.”

“States from all five regions voted to overturn the negative recommendation from the NGO Committee in regards to FELGTB Spain,” said Philipp Braun, co-secretary general of the International Lesbian and Gay Association (ILGA). “We would like the committee to acknowledge the repeated message sent by ECOSOC that it should recommend LGBT groups. We also congratulate our members COC and FELGTB on their victory.”

“Many states claim that ECOSOC’s votes need to follow the recommendations of its NGO Committee; the view of those who voted in favor of the LGBT groups, however, is that this cannot be done at the price of discriminating against anyone, including LGBT voices,” noted Adrian Coman from the International Gay and Lesbian Human Rights Commission (IGLHRC), who participated in monitoring the ECOSOC and NGO Committee meetings.

The NGO Committee is due to review a number of additional applications from LGBT groups at its next two sessions in January and May 2009.

Source: Human Rights Watch

Tuesday, 29 July 2008

States call for recognition of children from same sex relationships

State and Territory Attorneys-General have called upon the Commonwealth to amend the Family Law Act so that children of same sex relationships are recognised.

Their call, made at the Standing Committee of Attorneys-General meeting in New Zealand, is that section 60H of the Family Law Act be amended, so that children of same sex relationships are considered, for the purposes of the Family Law Act, to be children of the relationship.

If this were to occur, this change would in many ways accord recognition to co-parents. The same rules would apply to co-parents as they now do for married or straight de facto couples, and so it may not be necessary in the future for gay and lesbian co-parents to have to go to court to obtain orders to enable them to enrol children at school or make medical decisions without the permission of the natural parent.

Monday, 28 July 2008

Nattional uniform surrogacy laws to come?

The move for national laws continues apace. Aside from Western Australia moving to legalise surrogacy, now it seems that there are national discussion papers circulating amongst the health ministers and also the Attorneys-General.

New South Wales has also moved to refer surrogacy issues for consideration to its Legislative Council Law and Justice Committee.

Sunday, 27 July 2008

WA to approve surrogacy

Western Australia's Upper House has passed a Bill allowing surrogacy, for medically infertile women or those deemed incapable of full-term pregnancies, joining NSW and the ACT as the only States allowing surrogacy.

Western Australian Attorney-General Jim McGinty is reported as saying that passage through the Lower House, due on August 12, is a formality.

The Bill requires the surrogate mother to be over 25 and already have a child of her own.

Saturday, 26 July 2008

NSW calls for lesbian child support

New South Wales Attorney-General John Hatzistergos has called for the Family Law Act to be amended by the Commonwealth to allow for child support to be payable by lesbian co-parents to their former partners.

Commonwealth Attorney-General Robert McClelland is considering the move.

Currently both lesbian and gay co-parents are not recognised under the Family Law Act or the Child Support (Assessment) Act. The only way for a gay or lesbian co-parent to obtain child support is to sue in the State courts, relying on equitable estoppel: "We said that we were going to have a child, and you have to pay". This follows a New South Wales case, W v G (1996) where a lesbian couple split up, after having two planned children, the court ordering the co-parent to pay about $150,000 towards their upkeep.

Couple fail in court for extra baby

Last year, I posted about a lesbian couple who sued a Canberra specialist because instead of one egg being fertilised, two were fertilised, resulting in two babies not one.

Now it appears that their claim in the ACT Supreme Court has failed, and they have to pay the doctor's costs.

Friday, 25 July 2008

New York: many men who have sex with men don't tell their doctors, don't get tested for HIV

Don't ask, don't tell. That impulse may help prevent awkward conversations, but it's a losing strategy for slowing the spread of HIV. When health care providers know about their patients' sexual behavior, they can help prevent infection through testing, counseling and other services. But a new study from the Health Department suggests that those opportunities are often missed. In a survey of New York City men who have sex with other men, researchers found that 39% had not disclosed their sexual orientation to their doctors - a lapse that greatly reduced their odds of being tested for HIV. African-American, Hispanic, and Asian men who had sex with men were far less likely to disclose their sexual activities.

Characteristics of
Men Who Have
Sex With Men
% Have Not
Disclosed to
Doctor

Overall
39%

White
19%

Black
60%

Hispanic
48%

Asian
47%

Self- identified as Homosexual
22%

Self-identified as bisexual
100%

The study, published this month in the Archives of Internal Medicine, examined data from the 2004-2005 Centers for Disease Control National HIV Behavioral Survey, which examines risky behavior among men across the nation who have sex with other men (MSM). For the survey, men at gay bars and clubs were interviewed anonymously, tested for HIV, and offered medical and social services as needed. The Health Department analyzed data for the 452 survey participants who lived in New York City.

The study showed that men who disclose having sex with men were twice as likely as those who did not to have been tested for HIV (63% vs. 36%). The low rate of HIV testing among non-disclosers suggests that health care providers continue to practice risk-based HIV testing in New York City. This means that unless providers know that a patient has a risk factor for HIV, they are not offering the test. The current national guidelines, adopted in 2006 by the Centers for Disease Control and Prevention, call on health care providers to offer HIV tests to all patients between the ages of 13 and 64.

“Health care providers should screen patients routinely for HIV,” said Dr. Elizabeth Begier Director of HIV Epidemiology. “They should also ask their patients about behavior that may put them at risk. And New Yorkers shouldn’t hesitate to talk openly with their health care providers. Being frank about sexual behavior when you see the doctor of your choice will help you get the services and information you need to stay healthy.”

The study findings also suggest that just as doctors may hesitate to ask patients about their sexual practices, MSM are often reluctant to volunteer such information – especially if they do not regard themselves as gay. While the overall rate of disclosure was just 61% among MSM in New York City, the rate increased to 78% among those who identified themselves as homosexual. These men may have less apprehension about how their homosexuality is perceived and were more likely to tell their doctor.

“These findings show that the stigma of homosexuality can be harmful to people’s health,” said Dr. Monica Sweeney, Assistant Commissioner. “Because of the fear and discrimination that still surround coming out, we are missing opportunities to stop the spread of HIV.”

Disclosure rates also varied widely among different racial and ethnic groups. Among the MSM surveyed in New York City, blacks were three times more likely than whites to say they had not discussed their sex lives with their doctors. Disclosure was also less common among Hispanic and Asian men (see table). The findings are consistent with past studies suggesting that men of color are less likely than whites to embrace the term “gay” or deem themselves homosexual. They are more likely to call themselves bisexual or heterosexual, presumably because of the stigma associated with homosexuality in many minority communities. In the current study, 78% of the men who identified themselves bisexual were black or Hispanic – and none of them had disclosed his orientation to a health care provider.

Certain other sub-groups were also less likely to disclose their sexual practices. Men who were 28 or older were more like than younger men (69% vs. 52%) to be out to their providers. Those born in the United States were more likely than immigrant men to disclose their practices (64% vs. 52%), and those who were better educated disclosed at higher rates than the less educated.

Know Your HIV Status – Get Tested

If you have ever been sexually active or have injected drugs (even once) you should be tested for HIV.
Rapid tests are now available that give results in less than an hour.
If you’re infected, you can get medical treatment that can help you feel better and live longer. You can also prevent others from becoming infected.
Protect Yourself and Others

Not having sex is the surest way to avoid HIV and other STDs.
If you are sexually active, you can reduce your risk of getting or spreading HIV by having sex only in a mutually monogamous relationship with a partner you are sure is not infected.
Always use a latex condom if you have sex – vaginal, anal, or oral. NYC Condoms are available for free. Call 311 or visit nyc.gov/condoms.
Limit the number of people you have sex with. The more people, the higher your risk. Sex with people you do not know also increases your risk.
Avoid alcohol and other drugs when you have sex. Being intoxicated or high makes it much harder to remember to use condoms.
Some Activities Are Riskier Than Others

According to the best available evidence:

Receptive anal intercourse is the riskiest sexual act – it is 5 times riskier than receptive vaginal intercourse and 50 times riskier than receptive oral sex.
Insertive anal or vaginal intercourse is 10 times riskier than insertive oral sex.
Oral sex carries some risk for both partners, but is less risky than other penetrative sexual activities.
Condoms greatly reduce the spread of HIV for both partners in anal, vaginal, and oral sex.


Source: Media Release New York Health Department

Thursday, 24 July 2008

Queensland Surrogacy Inquiry: Update

The Queensland Inquiry into Altruistic Surrogacy is currently underway, with evidence being given today.

The Inquiry is considering whether Queensland should continue to ban (and make an offence out of) non-commercial surrogacy. Queensland is the only State to do so.

Several States are reviewing surrogacy laws, following a
push by former Commonwealth Attorney-General Phillip Ruddock to have nationally consistent surrogacy laws.

The most famous victims of the inconsistent laws are Senator Stephen Conroy and his wife who were forced to travel from Victoria (where surrogacy is banned) to New South Wales to have a baby.

PFLAG 2020 Brisbane Summit: Dr Wendell's prognosis

By Miles Heffernan

Booze, Pingas, Charles, Crack, Meth, G, Tabs, Mary Jane, Whiz, K and Hammer

These are the nicknames on our dance card that some of us catch up with daily, weekly, the odd Sunday before a public holiday or for just a splash at new years.

Are we turning to our party treats for a sense of fun and adventure? Is it a harmless pregnant pause into an otherwise dreary week of all work and no play? Do these pills, powders, potions and elixirs make us better lovers, friends and communicators? Or are they a creeping lantana on our already bruised psychology, whose presence is felt more strongly on a Tuesday than that vacant euphoria between 3am and 4am on a Sunday?

At the recent Q News 2020 Summit, Doctor Wendell challenged our belief these party treats are a requisite wing man to our weekend (or our daily routine). He is asking us to question why we find ourselves munted?

Is it because that it just the way we roll? Dr Wendell suggests “we need to dispel the notion that we need drugs or alcohol for fun. Let’s have a good time and remember it. Let’s connect with our friends, not to be disconnected”. Do we embrace overindulgence (perhaps a hearty chortle at your mate’s G-nap) – He was sooo McKenney’d last night?

Or should we cut away the varnish and come to terms with the fact it is garden variety escapism where being smashed is easier than facing the demons of being different? In doing so, are we perpetuating our own oppression by being drunk and drug-addled? Do our feelings of rejection, failure and secrecy overpower honesty, smothering openness, connection and self worth on the canvas?

Asked another way, are we better at being smashed than those who prefer the more traditional John Howard endorsed ‘man and woman’ unions? Some argue that we leave them in the dust.

What alternatives are there to the sweet caress of your 20th Bacardi Breezer? Where can we go where excess isn’t the norm? When does a night end without being loose that is not about as entertaining as a game of canasta with your favourite stamp collector?

These issues, with no easy answer, were grabbed with both hands by Dr Wendell’s session on Drug and Alcohol Abuse? This is not about being a nanny state Dr Wendell stresses. “The best person who should decide what is the appropriate use is the person themselves, weighing up the pluses and the minuses, and cutting out the denial of those minuses” he suggests.

Some of the outcomes that Dr Wendell’s groups came up with were:

Regulating and legalising the supply of illicit drugs for better control and harm minimization and to disconnect drugs from the profit of crime and the ongoing guarantees of crime that goes with the supply.
Develop new vehicles for socialising that are both fun and drug and alcohol free or moderately used;
Better access awareness of the resources that are available already to support people who abuse drugs and alcohol;
Social policy of inclusion and creating a genuine reduction in discriminatory values and therefore pushing self sabotage out the door;
Assisting people to find their own true moderation;
Addressing self worth and self accepting issues and having support mechanisms to reduce the desire to escape.

Wednesday, 23 July 2008

Summary of PFLAG 2020 Brisbane Summit

By Miles Heffernan

The Q-News initiative of having a 2020 summit took place on 21 June 08 thanks to PFlag’s Shelly Argent (and 2020 Summiteer) and a team of facilitators. Inspired by the Federal Government Initiative, we got to thinking what are the issues that face the GLBTIQ community in the next 12 years.

Shelly Argent was impressed with the day saying “We achieved more than expected. The room was full of positive energy and co-operation. It was an excellent mix of people that support the community including many heterosexuals who were keen for change.”

Professor Clive Moore kicked off the day by charting the changes of gay law reform and how it sometimes lagged behind community standards.

Then anti-discrimination champion Commissioner Susan Booth gave her take on the protections the Queenslanders have compared to our Interstate friends, particularly in the area of vilification. Ms Booth also pointed out where some laws need changing including the “homosexual advance” defence. This law allows for a straight person to claim reduced or no responsibility if they beat or kill someone at the time a gay or lesbian makes an advance at them.

The facilitators and topics were:
MARS and Stonewall’s Dr Wendell Rosevear (and also a 2020 Summiteer)– Drug and Alcohol Abuse and Male Sexual Assault;
The Centre for Human Potential’s Paul Martin – Gay and Lesbian Suicide and Self Harm;
QAHC’s Brett Stevens – on the increase in HIV diagnosis over recent years;
Open Doors’ Lisa Thorpey - Youth Issues;
Activist Kath Wilson – Discrimination within our community;
QAHC’s Hillary Knack – Health and Women’s Issues; and
The Employment Advisor’s Miles Heffernan on Building Communities

Thanks to QUT and Professor Alan McKee who organised for the room to be donated. Without a doubt, the day’s success was made from delegates who come prepared with outcomes on the mind.

Monday, 21 July 2008

Canada: Focus on same sex domestic violence

The Canadian National Clearinghouse on Domestic Volence has focussed on same sex domestic violence in its latest ebulletin:

Fast Facts

Spousal Abuse among Same-Sex Partners

According to Statistics Canada:


The 2004 General Social Survey on Victimization1 found that while the overall proportion of those who experienced spousal violence and who indicated that they were gay or lesbian was low, the rate of spousal violence reported between same-sex couples was twice the rate of violence between heterosexual couples (15%2 versus 7%).

Analysis of a 10-year police-reported linked file3, showed that 2.5% of police-reported incidents of spousal violence occurred between same-sex couples. The proportion of these incidents in which the couples were gay males was two-and-a-half times that of lesbian couples (72% versus 28%). Note that these data may undercount the prevalence of violence between same-sex couples as police may code the relationship as something other than current or ex-spouse (e.g., boyfriend or girlfriend).


Seventy percent (70%) of spousal incidents between same-sex couples reported to police between 1995 and 2004 were single incidents, compared to 62% among heterosexual couples. Heterosexual couples are at slightly increased risk of repeated spousal abuse (33% versus 27%) and chronic abuse (5% versus 4%) compared to same-sex couples.
Source:
Statistics Canada. Canadian Centre for Justice Statistics. Family Violence in Canada: A Statistical Profile 2005 and Family Violence in Canada: A Statistical Profile 2006 (Cat. No.85-224-XIE)

1 The results of the survey describe rates of violence committed against those who self-identified as gay/lesbian, but does not distinguish the sexual orientation of the perpetrator.
2 Use with caution, coefficient of variation is high (16.6% to 33.3%).
3 The composite data file linked all spousal violence incidents reported to selected police services over a 10-year period, from 1995 to 2004.

--------------------------------------------------------------------------------

Feature Article

The Woman to Woman Abuse Initiative

From 2004-2007, Status of Women Canada’s Women’s Program funded the Woman to Woman Abuse Initiative, a project of The Avenue Community Centre for Gender and Sexual Diversity. This project worked with women affected by woman-to-woman abuse, service providers and organizations to create a better understanding of same-sex partner violence, and to affect positive change in policies, programs and services.

As a result of the Woman to Woman Abuse Initiative:


Connections were made with service providers in the province of Saskatchewan regarding service availability for all women experiencing violence and abuse. Mail-outs initiated new contacts where none had existed before and facilitated referrals between agencies.
Some organizations changed their policies and procedures to reflect the diversity of the women with whom they work.
Posters and pamphlets are now available in many organizations.
Front-line workers have more and new skills to help the women who come to them for programming.
An enhanced understanding of same-sex abuse by women experiencing abuse and the general public was facilitated by establishing relationships with CBC Radio Regina and CBC TV Prince Albert. These media outlets were regularly updated on the project and other programs of the Centre.
Key connections were made at the STOPS to Violence, Saskatchewan Towards Offering Partnership Solutions to Violence Inc., provincial networking meetings.
Resources resulting from this project include:


workshop materials related to woman-to-woman abuse;
a poster detailing services for lesbians experiencing abuse; and
a brochure with the message: “You don’t deserve to be abused. Let us give Lesbian abuse the attention it deserves!”
These resources can be found on the Avenue Community Centre for Gender and Sexual Diversity website at http://www.avenuecommunitycentre.ca/prog/abuse.htm.

Saturday, 19 July 2008

Rights Abuses Fueling Global HIV Epidemic

Rights Abuses Fueling Global HIV Epidemic
Government, Police Actions Blocking Access to HIV Prevention
(Mexico City, July 15, 2008) – Unless governments act to end the human rights abuses fuelling the spread of HIV, little progress will be made towards addressing the global epidemic, 400 AIDS and human rights organizations said today. The coalition called on organizers of the biannual International AIDS Conference, which opens in Mexico City on August 3, 2008, to make human rights a central theme of the world’s largest gathering on HIV/AIDS.
“Ahead of the 17th international AIDS conference, governments are still violating the rights of people living with or at high risk of HIV infection,” said José Miguel Vivanco, Americas director at Human Rights Watch. “Governments have done little to fulfill their frequent promises to end HIV-related rights abuses. But until they act to end such abuses, even the best-planned policies to treat HIV and stop the spread of AIDS will fail.”

The Mexican government, host of this year’s International AIDS Conference, has also made commitments to address HIV-related human rights abuses through legislation and programs, but has fallen short in implementing these promises.

“Mexico has good laws on HIV/AIDS,” said Anuar I. Luna Cadena of the Mexican Network of People Living with HIV/AIDS. “But government institutions don’t adequately monitor abuses faced by people living with HIV or make sure they get the treatment and/or protection they’re legally entitled to.”

Sex workers in Mexico have reported human rights violations including physical abuse and discrimination experienced at the hands of police, civil servants, health workers, and employers. People living with HIV, men who have sex with men, and transgendered people also experience high levels of stigma and discrimination.

Outside of Africa, nearly one-third of all new HIV infections occur among injecting drug users. Yet effective measures to reduce HIV infection, such as needle-exchange programs and medication-assisted treatment with methadone, are banned by law in many countries or undermined by abusive police practices. Police abuse, sometimes amounting to torture, keeps people who use drugs away from basic HIV-prevention services, even where government policy supports these services. Police also routinely extort money and confessions from people who use drugs, sometimes using the mere possession of syringes as an excuse to harass or arrest drug users or outreach workers providing services to them. In prisons, the paucity of HIV prevention and effective drug treatment services only heightens HIV and other health risks. All too often, a sentence of imprisonment also leads to infection with HIV and/or tuberculosis.

“It is a tragic irony that those at highest risk of HIV often receive the least attention,” said Richard Elliott, executive director of the Canadian HIV/AIDS Legal Network. “In many countries, drug users are the majority of people living with HIV, but the smallest group receiving antiretroviral treatment. When they’re arrested, they’re even less likely to receive the HIV prevention and treatment services they need.”

Across the globe, HIV and AIDS services geared toward men who have sex with men and toward sex workers are also hampered by punitive laws and abusive government practices. Officials charged with enforcing prostitution laws routinely extort bribes, confessions, testimony, and sexual “favors” from sex workers. In many countries, police confiscate condoms from AIDS outreach workers, and use them as evidence of sex work or sodomy.

The coalition of HIV/AIDS and human rights organizations also highlighted the human rights abuses faced by women, who account for the majority of HIV infections in Africa, the continent hardest hit by the pandemic. Laws that deny women equal access to divorce, property, and inheritance increase vulnerability to infection and hinder access to treatment. In many countries, governments do not aggressively prosecute domestic or gender-based violence, or even recognize rape or battery by intimate partners as a crime. This leaves women at risk of HIV infection by their husbands or boyfriends, and creates barriers to lifesaving HIV services.

“African governments rush to ratify international conventions, but drag their feet when it comes to ensuring human rights protections for women,” said Michaela Clayton, director of AIDS and Rights Alliance for Southern Africa. “Legislation protecting women’s rights has languished in African parliaments for years. Protecting women from violence and securing equal rights to property are critical steps to stemming the AIDS epidemic.”

The International AIDS Society, which organizes the conference, has affirmed the importance of addressing human rights abuses in HIV responses. This year’s conference program includes a plenary address on human rights, a Human Rights Networking Zone in the conference’s Global Village, and a rally on August 7 to highlight the need for a much greater focus on human rights to achieve universal access to HIV prevention, treatment, and care.

“There is no shortage of rhetoric about the importance of human rights in responding to HIV,” said Vivanco. “This conference is the time to turn words into action.”

Source: Human Rights Watch

Saturday, 12 July 2008

It's only a question of time before it happens here...

Pinknews.co.uk reports that a marriage registrar succeeded in the employment tribunal in London on claims that she was bullied because she refused to gay and lesbian civil unions as she was a Christian amd that to have performed the civil unions was against God's will.

Wednesday, 9 July 2008

Lesbian couple obtain orders- without having to go to court

A failing of the Family Law Act, so far as same sex couples are concerned is the ability to properly recognise children.

I say "the Family Law Act", but that's not strictly correct- it's under the Family Law Act and related State legislation, such as the Queensland Status of Children Act.

The problem has arisen in part through the use of technology- IVF, ART and also through surrogacy, so that "parents" may not just be the biological parents of a child any more, but may be:
- a lesbian couple
- a lesbian couple and a gay father
- a lesbian couple and the gay father and his partner
- a gay couple

Only New South Wales is tackling the problem, and doing so only for lesbian couples. New South Wales Attorney- General John Hatzistergos was quite clear that he was not going to legislate to assist gay couples. There is still an issue in NSW about whether gay fathers, who want to be recognised, can be recognised, given that the recent amendments will still allow only two parents to be recognised on the birth certificate.

In Queensland, Attorney-General Kerry Shine announced that the fathers to lesbian couples would not be recognised on the birth certificates. I twice sought clarification from his office about whether this applied only for anonymous sperm donors in IVF clinics, or also where the sperm donor is known to the lesbian couple. I was told the matter would be "looked into" but I have still not received an answer.

For lesbian couples, with the possible exception of New South Wales, the only sure step is to obtain orders from the Family Court or the Federal Magistrates Court. Yes, it may be possible to adopt, even in Queensland, but this could be a very expensive and uncertain option.


Why obtain orders?

It may seem unnecessary to obtain orders- after all - we love each other and love our baby. Into this paradise strode the case of Verner and Vine- where female friends lived under the one roof for several years, bought a house together, even went to the IVF clinic and told the clinic that they were a lesbian couple, but were found by the Family Court NOT to have been a couple, with devastating results to the woman who asserted that they were an item.

Relief was in hand following the decision in Re Mark, where the Family Court made orders recognising that both gay partners were equally responsible in all respects for the care of their child.

Interestingly, if Re Mark were repeated today, where the child was conceived through surrogacy in California, then rather than go down the Family Court path the couple might have been able to obtain an adoption order in California, which in turn would have led to a new birth certificate, on which both partners were named as parents. This birth certificate would be recognised for all purposes, in Queensland at least.

Lesbian clients of mine recently obtained orders from the Family Court along the lines of Re Mark- both my clients are recognised for all purposes to make decisions for their child. What was unique about their case is that this is the first time, I am told, that these orders were made in Brisbane without the need to appear in court. Orders were able to be made on the papers- by our lodging the documents through the court and having them dealt with in the Registry.

Unlike Re Mark:
- my clients did not have to turn up in court
- my clients did not have to be interviewed for a family report

What a relief!

Sunday, 6 July 2008

De facto changes to go to Senate committee

The Senate has referred the bill to allow for de facto property settlement to the Legal and Constitutional Affairs Committee for inquiry and report by 27 August, with public submissions to be received by 25 July 2008.

The Bill, as Attorney-General Robert McClelland correctly states, contains landmark changes. It will make major changes to the Family Law Act to enable de facto couples, whether of the opposite or same sex, to use the same test as married couples for property settlement, super splitting and spousal maintenance.

The Bill, if passed, will mean huge (and positive) changes for same sex couples splitting up. It will allow for uniform laws, instead of the current 8 jurisdictions. One submission to the committee is from Western Australian Attorney-General Jim McGinty, who notes that WA has always had separately legislated family law, with its own Family Court of Western Australia, but essentially the same system as the rest of Australia.

The current system, in effect, discriminates against de facto couples, including same sex couples. The current system particularly discriminates against same sex couples because they cannot decide if they are to be under a system for married couples or one for de facto couples. Putting that more accurately- they are denied that choice because same sex marriages are not recognised in Australia.

Currently there is a less certain outcome for de facto couples than for married couples under the Family Law Act, and in some States, such as New South Wales, the partner with lesser financial contributions would receive less than that partner would likely have done under the Family Law Act.

Why there is a less certain outcome is simple:
- cases under the Family Law Act concerning married couples are brought in 3 courts: the Family Court of Australia, the Family Court of Western Australia, and the Federal Magistrates Court of Australia
- appellate decisions of the Family Court of Australia are binding not only on that court but also on the other two courts
- therefore there is generally a consistent approach in the three courts, no matter where the dispute might be
-because it is a national system, and because there are more married couples splitting up than de facto couples, there is therefore more case law, which is able to guide other courts, to ensure a more consistent approach
-family lawyers regularly practise in the Family Court and Federal Magistrates Courts, and are therefore able to give advice to their clients as to the most likely outcomes with some certainty
-most Family Law Courts judges were family lawyers before their appointment and were therefore specialised, or have following their appointment had that specialty thrust upon them, and therefore are quite familiar with the caselaw on point- and try to ensure a reasonably consistent approach, bearing in mind that each case turns on its own facts


The State jurisdictions are limited in many ways:
- first and foremost there are 8 separate jurisdictions with 8 separate rules, not only as to complex rules of procedure, but more so as to substantive matters, for example as to jurisdiction, or as to whether or not spousal maintenance could apply. If a couple were to live at Coolangatta, and one then moves across the street to Tweed Heads, but the relationship has not ended- some obvious questions lawyers would ask are: does the jurisdiction only apply in Queensland, or New South Wales or both; is it better for my client to be in a Queensland or New South Wales court; my client cannot obtain/pay spousal maintenance in Queensland but might obtain/pay it in New South Wales. There is nothing like seeing someone charge into court seeking property settlement and leaving with their tail between their legs, and costs order to boot because they forgot to check whether to start in this jurisdiction will be the right one.
- because there are 8 jurisdictions, and because de facto relationships are relatively a lot fewer than family law decisions, the case law is much more limited
- because of the different rules in different States, caselaw in one State is not binding and may not be effective in another State
-again because there are different laws, (with the possible exception of Western Australia) decisions of the Family Court of Australia or the Federal Magistrates Courts in like matters may not be followed. Indeed, in New South Wales and Queensland the tendency in some matters is to move away from the Family Court model
- State courts, with the exception of the Family Court of Western Australia, are not specialist courts. In Queensland, for example, most Part 19 Property Law Act matters are dealt with by Supreme Court judges, who were prior their appointment barristers in commercial disputes, and who after their appointment mainly deal with commercial disputes
-for these reasons, family lawyers have had difficulty in predicting outcomes in the State courts in de facto property disputes.

And finally, a less certain outcome means that the chances are that it will be a more expensive outcome. If one party wants to take the risk, knowing that there is a chance of success, why not? For the other party in particular, the legal costs just keep climbing.

Family lawyers have hoped and prayed for a long time that there would be consistent, national laws. This isn't for their sake, but for the sake of their clients- people who don't care whether something is a Federal or State responsibility, but don't want to spend money arguing a possible jurisdictional point, and just want the problem with the laws fixed- a simple request really. This Bill seems to offer that hope.