Thursday, 27 August 2009

Perils of parenting- Family Court

In the recent Full Court of the Family Court case of Simpson and Brockmann, the court was faced with what to do about parentage of two children. It appears that there was one sperm donor, with one child being born to Ms Simpson and one to Ms Brockmann.

Ms Simpson and Ms Brockmann had had a trial in the Federal Magistrates Court. An appeal ensued, and on the morning of the appeal, they handed up to the court a proposed order consenting to the appeal and declaring that each of the women be named as the parent of the child of the other.

This issue had not been canvassed at the trial, or at any earlier stage of the appeal process.

Justice Warnick, with whom Justices May and Barry agreed, remitted the matter back to the Federal Magistrates Court for further hearing and rejected the proposed declaration, in part because:


I am not satisfied that the power to make a declaration as to parentage in
that section in fact applies to circumstances that present here, where there is
no issue about the parentage of either of the children. It is well known who the
mother is of each child. It is not known who the donor of sperm was, but it is
known that it was the same male person in each case. Nothing contended to be any
other way.

The issue here is not about parentage, but the position or description
which each of the mother's wishes to adopt in relation to the child of the other
mother for the purpose of parenting orders. That is not the same as the
determination of an issue about parentage.

Seeking advice

Sometimes people try to post comments in which they seek specific legal advice from me. I reject those posts.

The Australian Gay and Lesbian Law Blog is for the provision of general advice about related issues and not specific advice. Amongst other things, if you post a comment about your case, you could run foul of several secrecy laws, as well as revealing confidential information about yourself that you do not want the whole world to see.

If you want specific advice from me, then phone me on 617 3221 9544 or email me at spage@harringtonfamilylawyers.com. If your inquiry is within my area of expertise, I will repsond. If not, I will attempt to refer you on to someone who can help.

Cheers

Wednesday, 26 August 2009

Inglis "protected" girlfriend from harm: court - Brisbane Times http://ow.ly/lnpi
Rudd condemns domestic violence: Acts against women are cowardly acts by men and no place, no place, in modern Australia

Monday, 24 August 2009

Tonight I had the honour to attend Dads in Distress. It was humbling. Honest men going thru the trauma of separation. Thanks, Paul.
I was lucky to meet my old boss- cheers, Fraser; and a bunch of other lawyers- all very friendly.
On Friday I was at theTrilby Misso personal injuries network conf. Topics incl. practice management, costs and marketing. Thanks, Jovan!

Saturday, 22 August 2009

Federal Attorney-General McClelland comments on his family violence review: Australian Divorce Blog http://ow.ly/kUqN

Thursday, 20 August 2009

I'm proud to be walking on 28 August with Lance Hockridge: Australian Divorce Blog http://ow.ly/kHbF
New LGBTI legal service for Brisbane: Aust Gay and Lesbian Law Blog http://ow.ly/kHbi
@eatingbrisbane Try these from my Aust Gay and Lesbian Law Blog: http://ow.ly/kH9J and http://ow.ly/kH9W and http://ow.ly/kHax
@Gabfran Flattery will get you everywhere! It's good to be passionate about life. Family law is hard work, but I love helping people. :)

New LGBTI legal service in Brisbane

An LGBTI community legal service has been incorporated in Brisbane. The purpose of the service is primarily to provide assistance to LGBTI people by advice sessions on a week night by volunteer lawyers, such as me, with links to appropriate counselling.

The service will launch in the next month or so, will be entirely staffed by volunteers (as it is unfunded) and will operate initially in the offices of QAHC (Queensland Association for Healthy Communities - formerly the Queensland AIDS Council) at Newstead.

It is expected that the service will also act as an advocate for legal change to remove legal barriers faced by LGBT people.

I am hoping to support the service, which will be a welcome addition to community legal centres in Brisbane.
Proposed Qld changes should overcome pernicious result form a 2006 Family Court case: Aust Gay and Lesbian Law Blog http://ow.ly/kyvB
Enlightening comments about Qld MP's attitudes to same sex surrogacy: Aust Gay and Lesbian Law Blog http://ow.ly/kyuT
Stamp duty progress in Qld: Australian Divorce Blog http://ow.ly/kytf

Wednesday, 19 August 2009

Anna Bligh announces surrogacy reforms to include same sex couples. http://ow.ly/kytN
Anna Bligh releases issues paper about same sex parenting: Aust Gay and Lesbian Law Blog http://ow.ly/kyuf
It's unclear if Qld surrogacy changes will still criminalise Queenslanders going to commercial surrogacy clinics overseas- I await the bill

Comment on proposed Queensland changes

The Government is proposing that both children born to lesbian partners have both partners recognised as parents on their birth certificates.

Gay partners are excluded from the proposal. However, if there is a surrogacy arrangement, other than through commercial surrogacy, it is planned that gay couples may be able to be recognised as parents under the planned surrogacy changes.

The proposal is set out in an issues paper released by Attorney-General Cameron Dick.
The proposed changes do not apply to all children born to same sex couples, unlike the laws in the ACT, but mirroring existing laws in NSW, Victoria, WA, the Northern Territory and the Commonwealth which are limited to children conceived via IVF to lesbian couples.

The proposed changes should overcome the difficulties from the Family Court decision in Verner v. Vine, which I have posted about several times before.

In that case, two women who had gone to an IVF clinic argued about whether or not they were in a lesbian relationship. One woman said to the court that they were not, the other said that they were. The judge believed the former, with the result that the latter was denied any relationship with the child born to the other woman. The effect of that decision, until these changes become law, is that some birth mothers in lesbian relationships might try to assert that they were not in a lesbian relationship, with the intent of denying their former partner any relationship with the child, and might succeed in that object.

The changes should allow both partners to register their names as parents, which should mean proper recognition for the co-parent.

Public comment on the proposals is open until 18 September.

Qld: Proposals for same-sex parenting reform

The issues paper released yesterday in Queensland, and open for comment until 18 September, about same sex parenting issues proposes a number of changes:

  • The gender specific wording of the presumptions in the Status of Children Act treats children of lesbian couples differently from children of heterosexual de facto couples.
    Unlike children of heterosexual couples, children conceived from a fertilisation
    procedure or artificial insemination and born into a same-sex relationship have only
    one legal parent (the birth mother), although the intention of the couple is to co-parent
    the child. A child born into this situation may be disadvantaged throughout life and on
    the death of their parents by having a legal connection to only one parent and one set
    of extended family.
  • To achieve consistency with other jurisdictions and in line with the other
    jurisdictions’ reviews, amendments to the Status of Children Act 1978 to extend the
    current presumptions are required. Amendments to the Births, Deaths and Marriages
    Registration Act 2003 enabling the birth mother’s partner to be recorded as a parent of
    the child are also required.
  • In the ACT, the presumptions of parentage have been extended to include same-sex
    couples who cohabit or where a fertilisation procedure has been used to conceive a
    child. The amendments replace the gender specific wording in the relevant sections
    with references to ‘parent’ and ‘spouse’ as defined in the Acts Interpretation Act
    1954.
  • In Victoria, New South Wales, Western Australian, Northern Territory and the
    Commonwealth (under the Family Law Act 1975), the amendments to the
    presumptions have been limited to where there has been a fertilisation procedure used
    to conceive the child. The amendments insert a new provision to recognise the nonbiological lesbian co-parent, where the birth mother has undergone the fertilisation
    procedure with the consent of her partner.
  • The effect of the operation of these presumptions is that when the child’s birth is
    registered, the non-biological lesbian co-parent is eligible to be registered as ‘parent’
    alongside the birth mother’s registration as ‘mother’. The birth certificate issued
    subsequent to this registration similarly identifies the ‘mother’ and ‘parent’.
    Either approach will remove the situation whereby male partners of women who
    become pregnant are presumed to be the parent of the child, but female partners are
    not, as a result of part 3 of the Status of Children Act 1978,.
  • The presumptions in the Status of Children Act 1978 are presumptions as to legal
    parentage, not genetic parentage, and any such amendments would be consistent both
    with the current framework and objectives of the Act to provide for legal certainty for
    children. Also the amendments will not detract from the uniformity sought in relation
    to the presumptions of paternity in circumstances of cohabitation or artificial
    conception. The amendments will not affect the parental responsibilities of fathers in
    circumstances where an opposite sex couple separate after having children and the
    woman commences a later relationship with another woman.
  • Queensland reform in this area will adopt the approach of the majority of Australian
    jurisdictions who have opted for the insertion of a specific provision relating to where
    artificial insemination and IVF have been used to conceive the child. This proposal
    will provide legal recognition of the parental status of a non-biological parent who has
    planned with her partner to have and raise a child together as a family. The legal
    recognition of the family structures of children born into same sex relationships will:
    �� provide these children with two legal parents instead of only one;
    �� promote certainty for parents and children in terms of the legal relationships
    with each other;
    �� provide legal certainty for service providers when they act on the basis of the
    consent of the non-biological parent; and
    �� provide children with the same level of security, both personal and financial, as
    children of heterosexual parents, should either of their parents die.
  • This proposal would not affect children of male same-sex couples as the presumptions
    are based on the relationship with the woman who gives birth to the child. However,
    male same-sex couples may be eligible to apply for a transfer of legal parentage from
    the birth mother under the proposed Queensland surrogacy model provided that there
    is compliance with the prescribed requirements under the model, such as a preconception
    arrangement with no commercial benefits to any party.
  • This proposal also does not affect the legal relationship between a child and the same
    sex partner of a biological parent where the relationship was formed after the birth of
    the child. However, these relationships are more analogous to heterosexual stepparenting
    and are able to be legally secured through Family Court parenting orders.

Qld: Enlightening comments on the Adoption Bill

The Adoption Bill was debated again in the Queensland Parliament yesterday.

Here are some enlightening comments made by MP's demonstrating their views, remembering that the Adoption Bill actively discriminates against same sex couples:

Grace Grace: I have had many representations in relation to the Adoption Bill, particularly from the LGBT communities in my electorate. I must admit that they have put forward some very strong cases about their ability to adopt. We have had some very good discussions, and I very much thank them for coming to see me.

I respectfully say that I fully understand their views and all of the issues that they raised.However, this bill does not provide for the ability for LGBT community members to adopt.

When I spoke to them, what I saw to be more important to them was the ability to have co-parenting rights. Can I say how much I applaud the statements made in this House today in regard to what will be changes to the surrogacy law which will give same-sex couples the ability to engage in altruistic surrogacy and also implement a system of co-parenting rights. I fully support them. I would like to see the detail of that legislation.

I welcome this for the LGBT communities that are a big part of my constituency. I think they deserve it. I think the children also deserve to have the same rights as other children in our society.

I also thank PFLAG, the Parents and Friends of Lesbians and Gays support group, and in particular the president, Shelley Argent OAM, who just this week wrote about same-sex co-parenting rights. I will be very happy to respond to that letter to let them know what we as a government intend to do to give them those co-parenting rights

......................

Gibson (LNP): I find it interesting to note that today we had the announcement in the parliament that altruistic surrogacy laws will be introduced. So the question could rightly be asked: should homosexuals not have the right to children through adoption? Potentially we will be debating whether homosexual couples have the right to have children through altruistic surrogacy.

So the question begs asking: why are we saying to same-sex couples that we are not going to extend them that right yet it has been flagged that we will extend them the right to altruistic surrogacy?

Ms Grace: There is a big difference.

Mr GIBSON: Why is there a big difference?

Ms Grace interjected.

Mr GIBSON: I want to touch on the big difference. In my view, the big difference is the way in which we regard children. No-one has the right to a child. The argument can be put forward that it may be a form of discrimination to deny homosexuals access to adoption. Can they not be just as effective and loving parents as married heterosexual couples? I am sure that within them they have the desire to provide the very best environment for children, yet this bill will deny them that right. Why does this bill do that? It comes back to a fundamental view that the best arrangement for a child to be brought up in our society is with a father and a mother.No-one can claim the right to a child. Children are not property to be owned. Even heterosexual parents do not have a right to a child. Rather, parents, regardless of their circumstances, are merely custodians of those children. It is a sacred and blessed privilege that is presented to us to be parents.No-one can claim the right to a child any more than a man can claim the right to a woman or a person can claim the right to a slave. No-one has the right to another person. Discrimination is based on the idea that someone’s rights are being violated. If children are not property and, therefore, no-one has the right to a child, then it cannot be claimed that homosexuals are being discriminated against by not having access to children, whether that be by adoption or by altruistic surrogacy. These are important principles upon which our society is based and which we must understand and hold sacred in this house of parliament....

Ms Darling: I also thank the member for Albert, who, when she was the minister, put in a lot of work, research and heartfelt time listening to people with regard to adoption reform.

Ms Grace: She did a great job.

Ms DARLING: A brilliant job. I also thank the current minister for bringing this bill into the parliament. I heartily support the bill. ...........

Ms Cunningham: There has been reference in this chamber to same-sex couples adopting children. At the risk of raising the ire of those members who hold a differing view to me, I certainly do not support same-sex couples receiving adoptive children or indeed children through other processes. Quite apart from my own faith values—and that is certainly the basis upon which I make that comment—couples who are infertile have at least a natural prospect of issue; same-sex couples do not. I believe that that is a significant consideration and one that I certainly place a strong emphasis on.

Tuesday, 18 August 2009

Bligh releases issues paper about same-sex parenting

The Bligh Government has released an issues paper for public comment about same sex parenting. The paper can be found here. Public comment is open until 18 September.

Adoption Bill progress in Qld

The Adoption Bill was again to be debated in the Queensland Parliament again today. Whilst scrapping and rewriting the 1964 legislation, the proposed law actively discriminates against same sex couples.

Independent (and former One Nation) member, Dorothy Pratt and National Party member Jack Dempsey have said that they are also opposed to de facto couples being able to adopt.

Bligh announces altruistic surrogacy to include same sex couples

The Qld Premier announced today that a bill will soon be presented to allow altruistic surrogacy in Queensland, removing the most regressive laws in the country.

The proposed laws will include same sex couples. Unlike her earlier view that ALP members would have to vote with the party line, I understand that the Premier has announced that ALP members will be allowed a conscience vote.

The Opposition has announced that it wants the Bill split- one version for heterosexual couples (which it supports) and the other for homosexual couples (which it opposes). The Opposition believes that it would have the numbers to defeat the measures.

Anna Bligh has stated that lesbian couples will both be allowed to be shown on the birth certificates as parents, but that commercial surrogacy will remain illegal. Currently it is illegal for surrogacy in any form whether in Queensland, or entered into by a Queensland resident anywhere in the world. Whether this remains the model for outlawing commercial surrogacy remains to be seen: the devil is in the detail.

Here are the Ministerial statements to the House by the Premier Anna Bligh and Attorney-General Cameron Dick:


Altruistic Surrogacy
Hon. AM BLIGH (South Brisbane—ALP) (Premier and Minister for the Arts) (10.07 am):
Members may recall that earlier this year I announced that my government would decriminalise an
antiquated law that prevents Queenslanders who want to have children from seeking the help of a
surrogate mother. We will do this because each and every Queenslander who wants to become a parent
should be allowed the opportunity to do so. We will do this because anyone who is unable to conceive a
baby but who wants to become a parent should know the joy of bringing a child into the world, providing
them with life lessons, shaping their future and guiding them into adulthood. We will do this on an
across-the-board basis, not shying away from the difficult and controversial choices.

Today I can advise the House that same-sex parents will be included among those who will be
affected by the decriminalisation of surrogacy because everyone, regardless of their sexual status or
their gender, should be afforded the privileges of parenthood. Throughout Queensland there are literally
hundreds of people who want nothing more than to become parents, but for a multitude of reasons they
are unable to conceive. By decriminalising altruistic surrogacy in this state, which is where an
agreement is reached with a woman to bear a child for another person for no financial gain or profit, we
offer those people fresh hope.

Later this morning the Attorney-General will outline for the House precisely how altruistic
surrogacy will work for prospective parents, but I can now outline in some detail how Queensland’s
model for legal surrogacy arrangements will operate. The legislative framework for altruistic surrogacy
will aim to achieve a balance between helping childless Queenslanders to become parents and
protecting the rights and interests of the child. Queensland remains the only state in Australia where
altruistic surrogacy is still a criminal offence. It leaves many people with limited options for starting a
family. In decriminalising surrogacy, the government had to consider the question of the legal status of
children born in these circumstances. My government’s legislative model for surrogacy will establish a
mechanism for the transfer of legal parentage that will mean that intending parents will be able to apply
to a court to transfer the legal parentage of a child from the birth mother to themselves.
Any Queenslanders will be able to enter into a surrogacy arrangement and people will be able to
utilise any of the various methods for conception, such as in-vitro fertilisation, artificial insemination and
self-insemination as well as natural conception. There will be no requirement for any of the parties to
have a genetic connection to the child or with each other, although in a number of arrangements it is
possible that that may be the case.

A District Court judge sitting in the Children’s Court will be given the authority to transfer legal
parentage, ensuring that children born in these circumstances will not be legally or socially
disadvantaged. We want every child to enjoy the same status and legal protection irrespective of the
circumstances of their birth or the status of his or her parents. At the end of the day, we simply want
every child to be raised in a nurturing and supportive environment. Once a court has made an order to
transfer the legal parentage of the child, intending parents will be able to lodge the order with the
Registry of Births, Deaths and Marriages so they can be recorded on the child’s birth certificate.

In October last year, the parliamentary Investigation into Altruistic Surrogacy Committee tabled its
report entitled Investigation into the decriminalisation and regulation of altruistic surrogacy in
Queensland, which made the significant and important recommendation that a review be carried out of
the legal status of the children of same-sex parents born in circumstances other than surrogacy
arrangements. This recommendation made particular reference to the operation of the Status of
Children Act, which states that, when a fertilisation procedure is used and where the birth mother is
married, her husband or de facto partner is automatically assumed to be the father of the child,
regardless of whether he is indeed the biological parent.
The review that was recommended by the parliamentary committee has been carried out by the
Department of Justice and Attorney-General and it identifies the important need to consider the issue of
same-sex parenting more broadly. I table the research paper as well as the paper that outlines the
Queensland government model for the decriminalisation of altruistic surrogacy.
Tabled paper: Review of the Legal Status of Children being cared for by Same-Sex Parents, August 2009.
Tabled paper: Queensland Government Model for the Decriminalisation of Altruistic Surrogacy and the Transfer of Legal
Parentage, August 2009.
The core issue outlined in that review is that female same-sex couples may become parents
without a surrogate—through artificial insemination or IVF—and it is important to give some legal
certainty to children born in those circumstances. Therefore, the government will also amend the Status
of Children Act to provide that where two women decide to have a child together both mothers are
legally recognised as the child’s parents and can be listed on the child’s birth certificate.
By decriminalising altruistic surrogacy we will bring Queensland into line with other states, and we
will no longer be the only jurisdiction in Australia where such arrangements could land a person in jail.
This brings Queensland into line with Victoria, Western Australia and the ACT, where governments have
also legislated to allow for a court to make an order for the transfer of parentage of the child to the
intending parents.
Importantly, this decision continues the determination of my government to modernise
Queensland—to ensure that our laws, our policies and our programs reflect the reality of modern life. In
this case the reality is that modern medical technology has made pregnancy and birth possible in
circumstances never previously imagined, particularly by our legal statutes.
The government’s model includes a range of safeguards to protect the interests of all parties but
most importantly the rights and interests of the child. This framework will ensure that Queenslanders
who enter into an altruistic surrogacy arrangement will be a legitimate family in the eyes of the law.
I stress that commercial surrogacy—that is, surrogacy done for profit—will continue to be illegal
and no financial gain will be permitted other than reimbursement to the birth mother for reasonable
hospital, medical and other associated expenses. Similarly, advertising for surrogacy births will also
remain prohibited. It is the government’s intention to bring this legislation into the parliament by the end
of this year. These new laws will offer those Queenslanders unable to conceive a new optimism and the
recognition needed to protect the legal rights of all children, regardless of the status or sexual
preference of their parents.

Altruistic Surrogacy
Hon. CR DICK (Greenslopes—ALP) (Attorney-General and Minister for Industrial Relations)
(10.13 am): The release by the Premier today of the Queensland model for the decriminalisation of
altruistic surrogacy and the transfer of legal parentage heralds a new era for many Queensland couples.
The fulfilment of our commitment to these important reforms means that many people who once only
ever had the dream of being able to start a family will now be able to make that dream a reality.
Furthermore, the proposed changes to the legal status of children being cared for by same-sex
parents will ensure that same-sex parents and their children are afforded the same legal entitlements as
any other family. These announcements represent significant law reform for our state, and I am very
pleased to outline for the House the details of the model we are proposing.
The Queensland model for the decriminalisation of altruistic surrogacy and the transfer of legal
parentage is underpinned by the fundamental guiding principle that the best interests of the child should
always remain paramount. Once a child is born through a surrogacy arrangement, the Queensland
model will allow court ordered legal transfer of parentage to the intending parents to ensure that the
people who seek to raise the child can be recognised at law as the child’s parents.
To permit the transfer of parentage to intending parents, however, a number of requirements will
need to be satisfied. Under our model, surrogacy arrangements will have to be in writing, and the
arrangement must be made prior to the child’s conception. The birth mother, her partner—if there is one
involved—and the intending parent or parents will all have to freely consent to the arrangement and
must have the capacity to do so. Any payment, reward or other material benefit to either party to the
arrangement will be prohibited and will be punishable by criminal penalty. These and other specific
safeguards aim to ensure that the best interests of the child are upheld before the transfer of parentage
18 Aug 2009 Ministerial Statements 1595
occurs. And, at the end of the day, if a birth mother chooses not to relinquish that child when it is born,
she will not be able to be forced to do so.
Certain safeguards will also be built into the court process for the transfer of parentage to protect
the rights and interests of the child and ensure that the parties understand the social, psychological and
legal implications of the surrogacy. These include: a requirement for all parties to seek independent
counselling and provide the counsellor’s report to the court; a requirement for all parties to obtain
separate independent legal advice about the implications of the surrogacy before they enter into the
surrogacy arrangement; the court must be satisfied that there is an established medical or social need
for the surrogacy; the child must have lived with the intending parents for at least 28 consecutive days
prior to the application for transfer of legal parentage being made; the birth mother and the intending
parent or parents must be at least 25 years of age at the time; and the application cannot be made after
the child is six months old. If the court is satisfied that these requirements have been met, an order to
transfer parentage can be made and a new birth certificate issued listing the intending parent or parents.
Surrogacy arrangements and the transfer of parentage are complex issues. We want to ensure
that the best outcome for the child is achieved. That is why we have developed a model that will provide
protection for children. It is a model that will help childless Queenslanders who long for the opportunity
to raise children in a loving family environment to do so. And it will ensure that no child is socially or
legally disadvantaged, regardless of their personal circumstances or those of their parents.

Saturday, 8 August 2009

Children not sick, just naughty: Australian http://ow.ly/jozC
The Norman we salute you. Phoenix like, Brisbane's worst vegetarian restaurant arises from the ashes: Brisbane Times http://ow.ly/joqN
Gays in Sydney are taking action to avoid homophobic violence: Sydney Morning Herald http://ow.ly/joqa

Wednesday, 5 August 2009

Pakistan moves to outlaw domestic violence: AFP/Fairfax http://ow.ly/j5XW

Sunday, 2 August 2009

60% of second marriages end in failure, compared to 30% of first timers: Brisbane Times http://ow.ly/iOaZ
ALP conference opposes gay marriage, votes for nationwide civil union laws: Australian http://ow.ly/iNLA
AMA president says not "natural" for gay people, single women to have IVF News.com.au http://ow.ly/iNLa

Saturday, 1 August 2009

Labor may be set to recognise civil unions nationwide; alter prescribed words of Marriage Act: ABC http://ow.ly/iJHP