Wednesday, 31 March 2010

Gay Egyptian a refugee: tribunal

The Refugee Review Tribunal has ruled in another case that a gay Egyptian is a refugee. This comes just after the tribunal recently decided that a gay Egyptian was a refugee.

In the most recent decision, called 0908933:

The applicant realised he was gay when he was 14 or 15 years old. He was sitting with a friend in class, studying human reproductive organs and this led to a sexual relationship between them. On one occasion he was engaged in sexual activity in the school toilets when a teacher caught them. They were beaten by the teacher on the principal’s orders and they were eventually separated. At that time he was very young and could not exercise mature judgement.

About a week later, he accompanied his friend to a park where they were fooling around. They were seen hugging each other by undercover police. The police approached them and slapped the applicant on the face. After they were beaten, the police let them go.

The applicant handed the [official from the Department of Immigration and Citizenship]  photographs of him and Person A, in the company of other men, at various clubs in Australia. He stated that Person A had purchased the camera a few days before the interview. The applicant had difficulty remembering the names of those in the photographs and stated that he forgets names quickly and some people do not like to disclose their name.

He met his second sexual partner, Person B, at college. On one occasion he decided to visit his friend at home. Person B’s sister attended the same college. She knew the applicant and she had a crush on him without his knowledge. When he arrived at Person B’s house, no one was home except Person B’s sister. She told him that she loved him and that she wanted to have sex with him. He tried to explain to her that he did not like her. She cried upon hearing this, but at the end he just left his friend’s house. A day or two later when he returned to the college, he saw her standing with his friends. They were all looking at him and laughing and he felt that something was different.

He had no other relationships and had never frequented any gay venues in Egypt. The delegate put to him that there are a number of gay venues in Egypt. He said these places were far away from where he lived and were frequented by tourists which meant that they were very expensive. He conducted his relationships privately and did not go to any clubs or cruising spots. He was asked if he was involved with anyone other than Person A. He said no.

He met Person A while they were both working as labourers. They did not speak to each other straight away, but on Saturday they went out to a gay pub and danced together. He goes to a specific area every weekend, but only goes to three clubs, mostly the Colombian. The applicant was unaware of the Sleaze Ball and did not know that a big party had followed the Mardi Gras. He said he has never had a profile on a gay social networking site, but he would like to. He was asked if he had heard of any gay websites, such as Gaydar or Manjam. He said no.

He stated he shared a “double bed” with Person A and slept on the right side of the bed. He did most of the cooking and they helped each other in carrying out the house work.

The tribunal found that the applicant would be persecuted if he were to return to Egypt, including a risk of torture. It cited an article from Gulf News which stated that two Egyptian journalists were jailed  and a thrid heavily fined for suggesting that three celebrities had engaged in gay sex:

"Homosexuality is punishable under Egyptian law and sternly frowned upon in Sharia....Most public figures in Egypt want to avoid being connected to homosexuality, which could damage their popularity among Muslim fans. [One of the actors that the story was written about, Nour] Al Sharif did not seem bothered by the accusations of belonging to a prostitution network, but was frustrated at being described as a homosexual.
"Naming me among homosexuals defamed me and all Egyptian artists. The Journalists Syndicate has to be firm with anyone trying to insult the dignity of Egyptian artists," he said.

Tuesday, 30 March 2010

Indian High Court ruling unlikely to have an impact on prejudice: tribunal

The Refugee Review Tribunal has said that the Indian High Court ruling in July 2009 in effect decriminalizing homosexual acts there is "unlikely to have any immediate impact either now or in the reasonably foreseeable future" as to how Indians generally regard homosexuality and that the  ruling is "unlikely to make any identifiable change to [prejudice against homosexuality] either now or in the reasonably foreseeable future".

It also said that there is no part of India to which an applicant for refugee status  "could reasonably be expected to relocate where he would be safe from the persecution which he fears".

The tribunal did so in an application by an Indian man from Kerala, in southern India, for refugee status.

The decision, called 0907630, also highlighted myths and misconceptions about gay people in Australia, particularly for those who are suddenly free from oppression overseas:

The [Department of Immigration and Citizenship official] further stated that it would be "expected" that I would fully embrace the freedom to engage in homosexual activities in Australia and that I had "provided no credible evidence that [I] had any sexual relationships with men in Australia since [my] arrival over three months ago". In my previous statement, I mentioned that I met a man once at an RSL club in [Australia]. In her decision record, the [official] claimed that I had given "vague testimony" of this encounter. Again, I did not feel entirely comfortable talking about it.

What happened was that we began talking and he suggested that we go outside to relax. He revealed that he was also interested in gay relations and I thought that he was interested in me. I felt comfortable enough with him to open up and I told him about my situation and how I was applying for refugee status. After that, he seemed to be uncomfortable and said that he had to go. He said he would call me but never did.

Although I was happy to finally be in a country where I could be open about my homosexuality, it does not mean that overnight I would turn into a promiscuous person willing to engage in homosexual activities with any man that I met. I do not think it is right to assume that, just because I am gay, I should be expected to have had more than one gay encounter over the course of three months. Most of the people with whom I had sexual relationships in India were men I had known over a period of time, whom I trusted, not strangers I met on the street. Moreover, I still keep in contact with [Person N] and I still have feelings for him so it is difficult for me to be with other men. (emphasis added)

The applicant was a member of the Kerala Latin Catholic Church. The persecution of him in Kerala started after he was sprung in a compromising position with another candidate in the seminary. He was kicked out of the seminary. At the urging of his parents, he was counselled by a priest. His parents were then targetted because the applicant was gay.

The applicant's statement about being Catholic and gay is telling:

I know that the Catholic Church does not condone homosexuality but Jesus himself never said that homosexuality is illegal. I did not decide to be homosexual - it is just part of me. By being gay, I am not doing anything wrong. I do not believe that being gay goes against Christianity, like being a murderer and a rapist, does. I am not harming anybody by being gay.

Sunday, 28 March 2010

Gay Egyptian granted refugee status

A gay Egyptian has been granted refugee status by the Refugee Review Tribunal. The Tribunal found that if the applicant were to return to Egypt it could not exclude as "remote and insubstantial" the risk of being persecuted, including being tortured by authorities, simply for being gay, and that he would not have "adequate and effective" state protection in Egypt.

The applicant had a hard life in Egypt and felt sad as a result. When he was 13 or 14 years old he had many questions about “sex”, but he was afraid to ask his parents or siblings for answers. Eventually, he befriended his next door neighbour, who became his first boyfriend. Through him, many of his questions about sex were answered. He went to his boyfriend’s house when there was no one home and they engaged in sexual activity. He began to realise that he is “gay”. He was always very scared and worried about people discovering the relationship.

When he was 16 years old, he met another boy whose father was a policeman and mostly absent from home. He went to this person’s house and they engaged in sexual activity, but he was always afraid of the consequences if his partner’s parents were to find out about the relationship. He also started feeling mistrustful of everyone around him, including members of his own family, thinking that they either know or may come to know about his sexual orientation.

At college, he began a sexual relationship with another male partner. Soon after, however, his partner was told by his parents that he should get married. They also told him not to speak to the applicant because they did not like him. His partner ultimately felt compelled to end the relationship because he was fearful of his parents.

After this, the applicant realised that his life in Egypt meant being afraid all his life and he decided to come to Australia to escape his predicament.

In Australia he met his current partner, Person A, who was also Egyptian. His relationship with Person A was the “best relationship” he has ever had, because he can conduct this relationship without fear in a country that does not treat homosexuals as “animals deserve to get killed”.

The Department of Immigration was highly suspicious of the claim for refugee status in the case, known as 0908905, as is evidenced by these lines of questioning:

It was put to him that it is not that unusual for males in Egypt to engage in sexual activity with other males before they get married. He was asked why his early experiences defined him as “gay”. He said he was engaged in sexual activity with Person E for two years and they loved each other. He was asked what made him certain that this was a definitive experience in determining his sexual identity. He said after their relationship started deteriorating and he stopped seeing him, he felt a huge gap and felt that he needed to be with a “boy” the whole time. At the end of his relationship with Person E he was certain about his sexual identity. This led to the perpetual problem he was experiencing, being constantly fearful. He started thinking that he was sick and abnormal and that everyone was suspecting him of being gay. He started to feel very lonely and shy. When he was in public places he became attracted to males and this caused him many problems because he could not express this desires.

He was asked if members of his family are aware of his sexual orientation. He said he could not say with certainty that this was the case. No one asked him directly whether he was gay and he was very discreet. However, he ‘felt’ that everyone knew. This was reflected in the way he behaved towards his family and others. He isolated himself and did not talk to any one.

He was asked if he knew any gay men in his home country. He said no. He was asked what were the difficulties he faced in meeting other gay men were. He said he felt paranoid about people and very scared.

He was asked if he was currently in a relationship. He said yes, he is in relationship with Person A. He explained that he met Person A in 2008 at work, when they were both working at a workplace in a named suburb. He further explained that the day they met was his first day at work and he was waiting around to start his shift. Person A passed him by, saw him, but did not realise that the applicant was Egyptian. Then, they started working together and found out that they were both Egyptian. After a week, during which many “things” happened, he realised Person A was gay. These things included Person A’s reaction when someone mentioned the word “gay”, the way he talked and his behaviour. The applicant started making “respectful”, sexually laced jokes with the intention of making sure that Person A was indeed gay. They realised that they were attracted to each and started flirting. Person A asked him out on a date and they went to a named venue. They wanted to go out to drink and dance and have a good time. No one goes to this area unless one is gay.

On their date, they first met at the train station and travelled to the city together. They proceeded to walk down the street and went to the venue. It was during the same night that they decided to live together.

He was asked why he had decided to form a relationship with Person A. He said because they are both homosexual and they danced together. Person A was the most suitable person for him because they could talk about what had happened to them in Egypt.

He was asked if their relationship is an exclusive relationship. He said yes, they are very loyal to each other. They go to a known area every weekend. They meet, dance and drink with many others, but that’s it. He has a friend in Person A.

He was asked if they socialised as a couple with others He said yes, but only in clubs and not at other places, such as work.

He was asked if he knew any gay men in Australia and if he socialised with them on a more frequent basis He said yes, but only at a very superficial level. He only goes to clubs to have fun and drink. He never thought of asking anyone to write a supporting statement for him.

He was asked if he has read any gay books or magazines. He said he viewed many homosexual videos. He was asked how he obtained these videos in Egypt. He said some of it he obtained from the internet and others through those he had relationships with.

He was asked if has accessed any gay internet sites. He said yes. He was asked what sites he regularly visits. He said he searches the internet through Google a lot and comes across many sites, where he goes to access photographs. There is no specific site he goes to.

He was asked when he started attending gay venues. He said about a month after he arrived in Australia he went to a known area. He had nothing to do and loved to walk around and that’s how he came across this area. He was very happy as he saw many gay men there.

He was asked what venues he goes to. He said he used to go to two venues, but he likes another venue because of the music and the friendly environment. He was asked if he attended any venues before meeting Person A. He said yes, on a weekly basis.

He was asked if he has had any other relationships in Australia He said no. He was asked why. He said because he was new to the country. He used to go, dance and laugh and that’s it.

The Tribunal referred to the membership cards he had submitted in support of his application for a protection visa and noted that one membership card is dated 2009. He was asked why he obtained a membership card in 2009. He said he used to go there sometimes and wanted to have a membership card so that he would not be obliged to take his passport with him. When pressed and asked why he had gone through the trouble of obtaining a membership card shortly before applying for a protection visa, he said he applied for membership when his passport started looking damaged as he carried it in his pocket while he danced.

The Tribunal referred to the photographs he had submitted to the delegate and asked the applicant when these photographs were taken He said he had bought a new camera and they went to the venues and took photographs. It was put to him that based on his oral evidence to the delegate he had bought the camera and taken the photographs shortly before the interview. He said this is not correct. Previously he used to take photographs with his mobile phone, but it was broken.

He was asked why he would embrace and kiss other men if he is already in an exclusive relationship. He said he just wanted to gain more friends and in reality he has no other relationships with anyone else.

It was put to him that the photographs appeared to be staged. He said both he and Person A like taking photographs of each other.

He was asked why he had waited two years to apply for a protection visa. He said he was very fearful of talking to anyone. When pressed, he said “fear” When asked to explain, he said he was afraid to tell anyone and when he realised he had rights, he applied. The more one lives in a place the more one learns about it. Even here he faced insults and assaults, making him fearful of being harmed. He was fearful of others coming to know about his sexual orientation if he applied.

The findings about state torture, although shocking, were not surprising:

The country information referred to above indicates that whilst homosexuality is not explicitly prohibited in Egyptian law, suspected homosexuals are routinely arrested and charged with “habitual debauchery” which carries a maximum sentence of three years imprisonment. Police routinely torture men suspected of homosexual conduct. In the past, the torture inflicted consisted of both physical and psychological methods, including being whipped, beaten, bound and suspended in painful positions, splashed with ice-cold water, burned with lit cigarettes, and mistreatment with electroshock on the limbs, genitals, or tongue.

Recent information indicates that suspected homosexual men continue to be subject to arrest and charge(d) for “habitual debauchery” or suspicion of having HIV. Those detained have been subjected to HIV tests without their consent and forensic anal examinations designed to prove that they had engaged in homosexual conduct. Whilst human rights advocates claim that local authorities are now targeting homosexual men having HIV due to the risk they pose to public health, this recent crackdown appears to be more likely an attempt by the Egyptian government to deflect local attention from public dissatisfaction with its response to the economic crisis vocalized in organized demonstrations in April 2008. Societal attitudes toward homosexuals and homosexuality in Egypt are mainly negative and “homosexuality is almost universally despised” and is viewed “as an immoral export from the West”.

Saturday, 27 March 2010

I have revamped the look of the Australian Gay and Lesbian Law Blog What do you think?
I have revamped the look of Australian Divorce Blog What do you think?

Wednesday, 24 March 2010

Traditional surrogacy v. gestational surrogacy

Traditional surrogacy

Traditional surrogacy is the method performed since time immemorial- where the surrogate's egg is fertilised, and carried in her to pregnancy and birth.

Gestational surrogacy

This is considerably different and uses the wonders of IVF. The fertilised egg in the surrogate is not hers. It is either the egg of the intended mother or the egg of an anonymous egg donor.

The usual method practised by clinics in Australia and overseas is that of gestational surrogacy. Most clinics will not handle traditional surrogacies.

Some clinics in Australia and overseas do not engage in egg donations, others do. One client reported to me, for example, that she was considered too old by the clinic in Australia. She then approached Indian surrogacy clinics who demonstrated to her that none of the clinics there that she enquired with  undertook egg donation.  Instead, she went to California where there was not the same difficulty with age, and  the clinic was familiar with donor eggs.

WARNING: It is an offence for residents of Queensland and  the ACT to undertake surrogacy with overseas commercial surrogacy clinics.

WARNING: Anyone considering an egg donation at an overseas clinic ought to obtain specific, qualified legal advice as to whether the child will be an Australian citizen by descent (or the child will not be a citizen and will not be allowed to migrate to or remain in Australia).
Family Court: wife can sue husband separately for damages for sexual assault: Australian Divorce Blog

Tuesday, 23 March 2010

Transgendered Pakistani woman granted refugee status

A transgendered Pakistani woman has been granted refugee status by the Refugee Review Tribunal. The Tribunal decided the matter on review from the Department of Immigration and Citizenship, which found that the applicant was not a refugee.

The evidence and information of the applicant was very disturbing:

From a very early age the applicant wanted to be a girl and he has always felt like a girl trapped in a male body. He was able to behave in a feminine way until he was 9. At 9 his father told him not to behave like a girl. At school he did not make friends and he was stereotyped as a gay by his peers. If he did not participate in male sports his father would lock him in a room and not talk to him for days. Both his parents were angry about his feminine ways and they physically punished him for them. He has scars on his upper lip and forehead where his father beat him at age 12 when he discovered some female cosmetics in his room. On that occasion his father locked him up in a store room for a whole day. In front of his uncles, his father threatened to pour petrol over him if he ever caught him in female clothing or make up. His uncle slapped him on the face for having cosmetics in his bedroom.

He moved to Islamabad to study at a university where he continued to lead an isolated life and felt pressured to dress like a male. He commenced taking female hormones at university but kept that a secret from everyone. He ceased taking hormones in Pakistan because he was scared of the consequences if his father found out. The applicant was only able to discuss his sexuality with his sister.

At university the applicant realised that Pakistan society would never accept transsexuals, no matter where he lived in Pakistan. His relatives have told him they will “get” him if he lives in Pakistan as a woman which he treats as meaning they intend an honour killing. The police would not be able to protect him.

In Pakistan gay people are looked down on and transsexuals lead the worst lives as beggars, sleeping on the streets without employment. He never felt safe in Pakistan as there is no protection for transsexuals as there are no laws enacted to protect them.

His family in Pakistan includes his father’s siblings and their children who live in adjoining houses in the same complex. The applicant stated that he is not able to seek protection from his relatives as none of them understand him.

In his early twenties his parents and his relatives pressured him to marry and told him that he was a disgrace to the family because of his homosexuality which they said meant no girl would marry him. His relatives warned his parents that his sexuality would mean that their children would be eliminated from marriage as the community would think all his generation is gay because of him. In front of his father and his cousins his uncle threatened to kill him because of his gay appearance which the uncle said brought shame and disgrace to the family.

He moved to Australia to undertake his Master’s degree where he has not been stereotyped or mocked for his feminine appearance. He started on female hormones again and living as a woman full time. He felt safe in Australia, a country where he has rights. He is considering having surgery to complete his conversion to a female.

He visited Pakistan in mid 2004 for his sister’s wedding. His hair was short and he still had some facial hair. By that time his breasts had grown owing to the hormonal treatment but they were not fully developed. He pretended to be a male during his time in Pakistan in 2004. During that visit he told his sister about his transsexualism. His sister advised him to keep away from their family because his life would be in danger if he faced them as a female.

On his return to Australia he met [Person 1]. [Person 1] proposed to him after 6 months. In April 2007 the applicant informed his father by telephone that he was living as a woman and his boyfriend wanted to marry him. His father was very angry and told him never to return to Pakistan as a transsexual and never to contact him again. Later in April 2007 the applicant’s younger brother informed him that their father had died and that the family blamed him for his death. One of the applicant’s uncles also telephoned him and threatened him with death if he returned to Pakistan as a transsexual. His uncle told him that his family is bound to take revenge on him in consequence of his transsexualism and that if he came to Pakistan he would be easy to trace and put to death.

He submitted that the laws of Pakistan do not permit gender changes and his sex will always be male on his identity documents. If he tried to get employment in Pakistan his documents would state he is male and so, upon presenting as a woman he would not obtain employment.

He does not want to live the life of a transsexual in Pakistan which is to live as a beggar on the streets and to earn money by working in the sex industry.

Monday, 22 March 2010

Transgender Malaysian accepted as a refugee

The Refugee Review Tribunal has upheld the claim for refugee status of a transgendered woman from Malaysia, on the basis that she would be persecuted in Malaysia, due to her status.

It appears that most transgendered people in Malaysia work as prostitutes, in part because they cannot obtain other employment in part due to stigma, and in part because they cannot change the gender on their compulsory ID cards, which shows them in their old gender. Most live below the poverty line.

The applicant had been rejected by her mother and sisters, and society in general, and arrested and fined for being a prostitute, as it was assumed that as her ID showed that she was male, was in an area where prostitutes were known, and was found with a male, she must have been a prostitute.

The applicant had applied to the Department of Immigration and Citizenship, been rejected as falling within the class of people as a refugee, and appealed to the Tribunal.

Statements by the applicant were heart rending:

In Malaysia I do not count as a person. I am not considered to be a man because I look like a woman. I am not considered to be a woman because my identity card says that I am a man. I have no rights to obtain employment or open a bank account, or even to get health insurance in my name. Because I can’t open a bank account I can’t purchase a house. If I am sick and go to the hospital, they will put me in the men’s ward. Any prescription or receipt they give me will be issued in the name of [applicant’s former name]. The pharmacy calls out that name and it is very embarrassing for me to answer to that name in front of everyone. People laugh at me and I worry that someone will try to beat me or assault me because I am transgender. It is not possible for me to change my identity card to say that I am a woman.

I cannot live in Malaysia There is nobody to take care of me and I am not allowed to work because of my identity. I was arrested three times just because of who I am and I was forced to pay money just so that I wouldn’t be put in jail. I did not do anything wrong but Malaysian society and the government thinks that there is something wrong with who I am. I do not want to work as a prostitute and that is the only life for me there. I am a transgender person I am being persecuted by the government and by the authorities in Malaysia who will not allow me to survive....

I [the applicant] 38 years, of age whom struggling in my life for justice. I would like to take this opportunity to express my feeling sorrow and disappointment at my country which I am living presently.

I am a Malaysian which rich in everything except for person like me who born as a boy but living as a girl. I had been going thru painful life during my time. There is no justice, understanding, pity and sympathy on people like us. I had been fighting for life for justice in my country but its failed.

My mum doesn’t work. She are (sic) housewife the only person who take care of me is my father (he reasonally (sic) past away) there is no one to take care of me.

In my country they look down on (transsexual) like me and they don’t accept for what I am and who I am they only care for their needs an their races and sex.

I am a complete woman now. I tried to get a job they look down on me because of my (Identity). Its return that my gender as are (male). In Malay it means (Lelaki).

This is the reason why I am expressing my feeling to you sir/mdm how painful and difficult life I am going thru in my country.

I am begging for leniency from you sir/mdm to allow me to stay in your country.

I would really appreciate if you sir/Mdm grant my wish...

Family Court: husband restrained from calling wife a lesbian

In the recent Family Court case of Sceterra and Sceterra, the husband was restrained from calling the wife a lesbian.

Justice Watts said this about the husband's behaviour:

The husband on a number of occasions made allegations that the wife was having affairs with her teenage son’s friends and that she was having a lesbian relationship. It is not controversial that the husband had sent letters to the wife’s neighbours telling them that she was a lesbian “because they need to know what they are living near.” The husband indicated to [by a report writer] that he had seen the wife in a motor vehicle with one of S’s friends and has seen cars parked out the front of the wife’s home and believes that those cars belong to the wife’s teenage lovers. [The report writer] in her report records that he told her, “I’ve seen [the wife] with the boys. I have seen a car parked outside the house when [S] wasn’t home” and “I have seen her in a car with him (teenage boy).”

I find that these allegations made by the husband are without substance and are in fact fabricated. This behaviour by the husband is indicative of obsessive behaviour, which is part of the family violence alleged by the wife. I find that the husband deliberately set out to publicly denigrate and destroy the wife’s character.

Sunday, 21 March 2010

Family Court: parents do not have right to authorise treatment of transsexualism

The Family Court recently rejected a claim by parents of a transsexual girl now aged 18, as to whether parents have the right to authorise treatment for transsexualism, the court saying that it should be the decision maker.

Orders had previously been made in the case, called Re Bernadette for the girl to receive treatment. The hearing was in November 2007, but judgment was not delivered until the girl turned 18.

The girl had been assigned as a boy at birth, but by the age of 3 commenced showing female behaviour, preferences and traits. Identifying herself as female, by age 12 she started living as a female and was referred to as Bernadette.

The parents were critical of the earlier decision of Re Alex, in which the court had authorised treatment for gender identity disorder for a boy. The parents said that there was no need for court involvement and that they as the child's parents should be able to ensure that doctor's treat the child without the involvement of the court.

Justice Collier stated:

The condition of Bernadette has been described as gender identity dysphoria or adolescent transsexualism. Simply put, Bernadette although born a male believes herself to be female and has affirmed her female sex. She has lived as a female since 2004.

One of the major questions in this case is whether or not transsexualism is a malfunction or a disease or a natural variation to be found in human beings where brain sex and genitalia are different. The argument of the applicants is that such a situation does not occur as a result of disease or malfunction, and accordingly should not be treated as such.

In this case I am not satisfied that the medical evidence was clear cut so as to enable me to say precisely what was the cause of transsexualism or gender dysphoria.

Clearly in the joint report of Professors T and W a report was attached which went to this issue. The question was put “Do you agree that the most likely or feasible explanation for transsexualism is that it is the incongruence in a human being between sexual differentiation of the brain and the balance of the sexually differentiated body”. The response what was that the phenomenon was a very complex one, at the moment we do not have enough data to prove that is the most likely explanation....on a reading of the whole of the evidence I am not able to say conclusively what it is that is the cause or causation of transsexualism.
...However, in all the circumstances in this case I am unable to say that the medical evidence presented to me has demonstrated conclusively the cause of transsexualism so as to enable me to find that it is a normally occurring factor of human development. I am thus not satisfied that on that test, that transsexualism is a condition that falls within the range of matters that can be addressed and seen as falling within the parameters of normal parental responsibility to authorise treatment.

For the reasons I have endeavoured to set out, to try and make any form of order or declaration that would be seen as enabling any parent or guardian to authorise treatment of the type involved in this case could be to expose children, the subject of such authorisations, to unwarranted risks. It would not, I am satisfied, be in the best interests of every child to enable parents or guardians to give such consent. Accordingly, I am satisfied that in the best interests of children it is necessary for the court to retain the power to authorise treatment in respect of a particular child when treatment of this kind is contemplated. The court may in appropriate cases, being satisfied on evidence put before it, find that in that particular case it is appropriate to permit the parents or guardians in that particular case to authorise treatment. However, that remains a matter for determination on a case by case basis. (emphasis added)

Wednesday, 17 March 2010

Family Court: lesbian couple and child can be a family under Family Law Act:

Family Court: lesbian couple can be "family"

The Family Court has recently stated that a lesbian couple can be a "family" within the Family Law Act. It was said in the context that the mother of a child, known as "R" who was born a month before the couple started living together (they split up when the child was 3 1/2 ), said that her former partner was not a "parent" within the Family Law Act, should therefore have no involvement with the child, and therefore they were not a "family" within the meaning of the Family Law Act.

The child had as one of her names the surname of the mother's former partner. The mother agreed to the former partner spending time with the child after they split up, until one day she opposed it.

In the case, Bagley and Snell, the mother stated that she was dominated and intimidated by her former partner. The mother argued that she did not concede the right of parenthood to her former partner. She argued that the court should have an additional or different focus in the case than "between the usual situation of a contest between two parents". She argued that that different focus is as a result of the "different legal nature" of the relationship between the child and her former partner.

The trial judge, Federal Magistrate McGuire, said that the former partner was not a "parent" within the Family Law Act, but should have contact with the child. He stated:

with the plethora of allegation, counter-allegation, issues of credit and disputed fact, what can I extract or what do I know about [R]’s circumstances. I know that [R] is very young. She is not yet four ... I know that she has for the best part of her life had a relatively consistent presence of both [parties] in her life. I know that there is a dispute as to the status each sought for the other in [R]’s life. But that there is no dispute of the fact of the presence of both in [R]’s life.

The mother's lawyer stated:

“Family” is not defined in the Family Law Act. It is submitted that the Federal Magistrate erred in importing the notion of family structure so as to consider the two parties as equally significant in the life of this child necessitating orders to preserve equally the relationship between the child and each of the parties.

Justice Warnick on appeal stated:
As to [the mother's barrister's] criticism of the Federal Magistrate’s use of the term “family structure”, I do not think his Honour’s use of that term inappropriate to the topic he was discussing. Even if he was applying it to the household of these parties and child – which literally he did not – I would not, on the view he took of the history of the mother, [her former partner] and the child – regard that as inappropriate....
Emphasising the best interests principle, Justice Warnick stated:
The focus of the enquiry [should be] as to what time the child should spend with [the former partner], the answer to which is essentially, that time which is in [the child's] best interests.

Wednesday, 10 March 2010

RT @PeterBlackQUT: 10 things you can do to show your support for an open internet against government censorship

Tuesday, 9 March 2010

High Court: why the Mt Isa relocation case had been wrongly decided: Australian Divorce Blog