Tuesday, 20 October 2009
Thursday, 15 October 2009
- a lesbian couple, Ms Halifax and Ms Fabian, who had been together for 7 years, but who had split up a year before the court decision
- their two kids, X and Y. Ms Halifax is the mother of Y, a girl aged 7, and Ms Fabian is the mother of X, a girl aged 3.
- The father of Y was Mr Dalton. X's father was an anonymous sperm donor.
- Mr Dalton had partnered a Mr Ballard.
- There were three houses for the kids- Ms Halifax's, Ms Fabian's and the men's house.
Ms Fabian decided that she wanted to move to NSW from south-east Queensland with X.
The preliminary question for the court was whether the men, who had no genetic connection with X had a right to go to court, on the basis that they were people concerned with the "care, welfare and development" of X. Federal Magistrate Purdon-Sully held that the preliminary threshold had been met.
Her Honour found:
Whilst it is clear that historically the relationship between Ms Fabian and Mr
Dalton and Mr Ballard was not as close as that enjoyed by Ms Halifax... and
whilst it is clear the mother was less committed to the particular type of
non-traditional family arrangement enthusiastically embraced by her former
partner, ..... and whilst there may be some merit in the submission of counsel
for Ms Fabian, Ms Brasch, that it was a life-style choice ultimately imposed
upon her as a consequence of her relationship with Ms Halifax and her commitment
to their parenting of [Y], the evidence is that Ms Halifax and Ms Fabian made a
decision to parent their children together, without differentiation and Ms
Fabian knew that Mr Dalton (and his partner) would be involved in the parenting
The evidence showed:
- The men were involved in the parenting of both children. They had established a home to accommodate the development of the relationship and had made employment and residential adjustments to that end.
- Decisions were made prior to conception of both children including with respect to religion, education, circumcision, discipline, all four adults agreeing to remain living in south-east Queensland.
- The men accepted Ms Fabian's invitation to attend her twelve week pregnancy scan.
- The men visited the hospital the day of X’s birth and daily thereafter and cared for Y until X was brought home.
- The men were introduced as “daddy” to the friends and family of the applicant and mother. X referred to her mother and Ms Halifax as “Mummy” and “Mama” and to the Mr Dalton as “Daddy” and “[Mr Ballard] [first name omitted]” (and possibly “Daddy [first name omitted]” on the evidence of Mr S.)
- The children developed a close attachment to each other and to the men. The family report writer observed that the children were strongly attached and affectionate with both mothers and affectionate and secure with both men. Ms Fabian acknowledged that the men loved [X], that [X] was comfortable with them and that they had a bond with her and should spend time with her, her complaint being that they should not be permitted to assume a parental-decision making role.
- The men spent regular time with the children including on weekends and week days and they were also asked to babysit from time to time.
- Whilst Ms Fabian's refusal to agree to overnight time caused some angst and created problems, on their evidence, with [Y]’s arrangements, on one occasion Ms Fabian did agree to this to enable [X] to spend time with her grandmother, Mr Ballard’s mother who was visiting.
- The men exchanged gifts with the children on birthdays, special occasion, on Father’s Day and at Christmas, including in 2008 after Ms Halifax and Ms Fabian had separated.
- The men and women socialised, attended activities, celebrated special occasions and had holidays together.
- The men attended with the children and Ms Fabian at the annual gay pride parade marching in the family section of the parade.
- The men established a separate bedroom for [Y] and [X] with a bed that converted to two singles beds to accommodate any overnight stays and did so with the knowledge and without objection from the applicant or the mother.
- [X] had a photo of the two men in her bedroom.
- The men were listed by Ms Halifax as emergency contacts in 2006 and 2007 at [X]’s day-care centre.
- Ms Fabian consulted Mr Dalton about some medical issues to do with [X] given his medical background.
Wednesday, 14 October 2009
Sunday, 11 October 2009
President Obama is quoted as saying that 12,000 service personnel have been drummed out of the military based on their sexuality.
No deadline has been put on when the change might be enacted.
A whole variety of lawyers are needed - not just family lawyers like me!
The function will be followed by an outing to a local restaurant for all interested.
The model for the service is very similar to other community legal services, such as Caxton.
When: Wednesday 4 November, 2009, 6pm
Where: Queensland Association for Healthy Communities, 30 Helen St, Newstead
Cost: Free for the function. Restaurant- you pay for what you eat and drink!
Email me: firstname.lastname@example.org
Phone me: 07 3221 9544
Tweet me: http://twitter.com/stephenpagelaw
or wait for further details...
The move means Uruguay becomes the first Latin American country to allow gay couples the chance to adopt.
Uruguay already allows civil unions.
The claimant, a 27 year old pre-operation male to female transsexual, was serving life imprisonment for manslaughter and attempted rape. She had obtained a certificate under the Gender Recognition Act, and was for all purposes recognised as female. She had had hormone therapy and no longer shaved. She dressed and was generally recognised in prison as a woman. She wore makeup. The requirements of the prison were that she could dress as a woman in her cell, but had to dress as a man once out of her cell!
Under the Gender Recognition Act, the claimant was recognised for all purposes in law, except apparently in prison, as a woman.
Not surprisingly, for her protection, she was held in segregated. The bureaucrat refusing to transfer her cited part of the reason for that was that in a women's prison she would be segregated, ignoring the fact that she was already segregated.
The claimant asserted that the refusal to allow her to move to a women's prison prevented her from being operated upon, and also prevented her from undertaking the necessary courses that were required to enable her earlier release from prison.
The claimant stated:
"The prison service seems to have confused attitudes about all this. They
will not consider me as a female until I have my penis removed ...
notwithstanding my gender recognition certificate. Yet they resist moving me to
the female estate which would enable the surgery to be arranged.
I feel an increasing sense of urgency to get this final stage completed. I have been
trying since I was 10 to get this sorted out and I am now 27. After 17 years and
when I am so nearly there, it is frustrating not to be able to progress to the
final stage. I sometimes worry that it might never happen. I feel in limbo, I
read in the papers about young people in the community who are getting the help
they need and that I asked for. Recently there has been a young person from the
north east who has had surgery at the age of 19. I am very happy for her but I
wonder why that could not have been me. It is not as though I am someone who has
asked for this later in life having tried to live a different life - getting
married and having kids and so on. I have tried to get help from a very early
age. I do get frustrated but I try to deal with this on my own. I do cry and let
my emotions out but I do this in the privacy of my own cell. It is not something
I can discuss with anyone in the prison.
The bureaucrat stated why he had refused the transfer request to the women's prison, which apparently boiled down to money:
It is important to have in mind a number of factors when considering
whether it would be appropriate to allow the Claimant to be placed in the
general female estate (i.e. not in segregation): the specifics of her offending
history (which of course include an attempted rape of a female, as well as
manslaughter); the difficulty of sourcing any suitable interventions for her and
the time it will take to put something in place and then to monitor her response
in terms of reducing her level of risk; the lack of guarantees that her surgery
will definitely proceed, as this is a clinical judgment which is totally outside
the control of the Prison Service; concerns over how the female population would
react to her generally, and also specifically if they became aware of her index
offence. With all of the above in mind, there can therefore be no guarantee that
the Claimant, either pre- or post-operatively, would ever be suitable for
integration into the general female prison population.
There are serious detrimental effects of segregation on a prisoner over
a long period of time and I note the Claimant's history of reacting badly to
frustration. This increases the likelihood that she could become progressively
harder to integrate into the general population, should she be moved to a
segregation unit in the female estate.
I would also say that following an unsuccessful move to the female
estate, it would be extremely difficult to move the Claimant back to the male
estate at that stage.
Notwithstanding the issues about risk and the immediate difficulties
of any transfer, there are also difficulties with keeping the Claimant on
indefinite or long-term segregation. While she has self-segregated in the past,
it is clinically undesirable for her to remain apart from her peers. Associating
with them is a necessary part of the therapeutic process, but is clearly not
possible while segregated.
There is the further difficulty with the very considerable cost
involved. No definitive long term costing has not been done yet. However, the
segregated regime of another male to female transsexual prisoner who previously
transferred to segregated accommodation within the female estate is estimated to
cost approximately £85,000 per year (in addition to the standard costs of
imprisoning any individual), This includes the costs of keeping that prisoner
ring-fenced with two dedicated officers, and a third trained for relief work, as
well as separate psychology and mental health costs, and costs for separate
exercise and education. This presents significant resource implications.
There are other concerns including concerns that other male to female
gender dysphorics may wish to follow any precedent set by the Claimant and enter
the female estate which would further constrain the limited number of available
segregation places in the female estate.
The court held that the decision was in breach of the European Convention on Human Rights, which meant that the claimant would be able to be transferred to a women's prison.
About a year later, when Mr Mitchell went to donate blood, he discovered that he was HIV positive. He made a claim on his health insurance policy. The insurer instead cancelled the policy because, it said, he failed to properly disclose, at the time of entering into the policy, that he did in fact have HIV.
The insurance company did this because there was a note in Mr Mitchell's medical chart that stated that he had HIV. This note was written after the news came from the Red Cross about his HIV status, when Mr Mitchell then sought confirmation from his doctor, but was incorrectly dated the year before- it was therefore dated before Mr Mitchell applied for health insurance. It was clear, overwhelmingly, that the entry in the medical record was wrongly dated, but the insurance company relied on the date to cancel the policy.
At trial, the evidence against the insurance company was damning:
At trial, Mitchell’s insurance expert testified that it was [the company’s] practice to shut down an investigation once a single piece of evidence was discovered that would support rescission. Further, Mitchell introduced testimony from [the company’s] manager of underwriting and correspondence ...who testified that she was “not able to answer” whether she or any of her employees “had a responsibility to find out the truth” about a policyholder’s medical conditions. On cross-examination, [the company's] insurance expert conceded that an insurance company has a duty to investigate and find information that may lead to payment of a claim.
At trial, Mr Mitchell obtained an award of damages form the jury, including punitive damages, of US$15 million. The insurer appealed. On appeal, the South Carolina Supreme Court upheld the appeal in part, reducing damages to US$10 million.
Sunday, 4 October 2009
Anyone else? If you are an LGBTI lawyer, or LGBTI friendly, give me a call, and I'll fill you in with what's involved. The service is looking at a whole range of lawyers, not just family lawyers like me. Either email me or phone me: 07 3221 9544.
This service is completely unfunded, although the Queensland Association of Healthy Communities is helping out, not only hosting the service when it gets up and running, and in kind help, but now some money for someone to help get it started.
QAHC has advertised for someone to get it started. Here is the ad:
LGBT Legal Information Project CoordinatorPart-time for 6 months (19hrs/week - negotiable) – based in Brisbane Base Salary = $50,246 (pro-rata) Salary Package = $58,000 (pro-rata)+ 9% employer superannuation contribution You will:
Consult with the LGBT community, legal practitioners and others to identify key legal issues for LGBT people
Research, write and focus test content for a LGBT Legal Information website (see www.over-the-rainbow.org for an example)
Commission the design and layout of the website, using a content management system
Promote the website to LGBT people, legal practitioners and others with an interest.Info…QAHC adheres to EEO principles and all applications will be assessed on merit.
QAHC values the contribution of people with HIV/AIDS in the workplace and encourages people with HIV/AIDS to apply. Reasonable travel expenses to interview will be reimbursed and relocation allowance paid for people moving town/interstate/. For a copy of the application package phone (07) 3017 1777, email email@example.com or visit www.qahc.org.au/jobs
If you have any questions contact Paul Martin, General Manager on (07) 3017 1791 or 0407 376 540. Applications close 4pm Monday 19th October 2009.