Paggett & Cable: Denying the father’s parental responsibility

On 25 September 2015 the Family Court of Australia handed down the judgment of Paggett & Cable [2015] FamCAFC. The Court overturned the trial judge’s decision to deny the father parental responsibility and to grant him only very limited contact with the child. This judgment is a reminder that significant and credible evidence is necessary to support the limitation of parental contact and the denial of parental responsibility.

The trial judge made orders providing that the mother was to have sole parental responsibility for the child, for the child to live with the mother, and for the child to spend a limited amount of time with the father. While the father did not wish for the child to live with him he took issue with his exclusion from the exercise of parental responsibility and the very limited time with the child granted to him by the trial judge. The Orders were particularly disappointing as they gave the father less time than what was recommended by the family consultant and sought by the mother.

The father successfully appealed the decision on multiple grounds. The significant delay of 17 months between the final hearing and the making of Orders and delivery of was found to have a negative impact on the judgment. This delay was found to have impaired the trial judge’s capacity to assess all the evidence, resulted in a failure to make necessary findings of fact and caused undue weight to be given to more recent evidence adduced in February 2015.

It was also found that there was a lack of consideration of an order for the child to spend substantial and significant with the father. The Court particularly had regard to the father’s application for substantial and significant time, an existing order for a relatively small amount of time to be spent with the father and the trial judge’s taking into account of the anxieties of the mother that were found to be not “necessarily based upon reality”.

An order that seemingly restrained the parties from reaching a private agreement until 2016 was ruled to be unenforceable. The order states that the child could spend an increasing amount of time with the father after 2016 “if the parties wish to do so”. The Court described this Order as “aspirational” and surmised it could inflame conflict as it encourages an expectation for increased time for the father that the mother may not consent to.

This case demonstrates the problems delays in the court process can cause parties and the need for strong evidence to support orders curtailing the time spent and responsibility sought by a parent. Orders that favour one parent need to be supported by evidence such as the unfavourable findings of a family consultant or credible concerns with the ability of the parent to provide adequate care.

The significant delay between the first hearing and the making of orders in this instance contributed to the judgment being overturned. The parties of Paggett & Cable now have to await a retrial, which compounds the delays they have already experienced. In light of this decision undue delays between hearings and the delivery of orders should be avoided in order not to further aggrieve parties that are already inconvenienced.

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Gilmour & Lennon: The impact of child relocation

The recent decision of Gilmour & Lennon [2015] FamCAFC 166 concerns the impact that child relocation can have on a child’s relationship with the separated parent and the consideration of the practical difficulties faced by the parents.

On 8 July 2008 final parenting orders were made for the child to live with her mother and have equal shared parental responsibility. The child was to spend time with the father each alternate weekend with changeover occurring at a nearby town in New South Wales.

In mid-2014 the mother planned to move the child to the Central Coast to be closer to her family, for better work opportunities and for better educational opportunities for the child. She wrote a series of letters to the father explaining her reasons for the move and proposing arrangements for him to spend time with the child. The father repeatedly declined to agree. In response to the mother relocating the child to the Central Coast the father filed an Initiating Application seeking the return of the child and an interim order restraining the mother from relocating the child without his consent.

Dunkley J made an interim order returning the child from the Central Coast. His Honour in making this interim order considered the risk that if the child continued to reside in the Central Coast her relationship with the father would deteriorate. He found that there was nothing to rebut the presumption in favour of equal shared parental responsibility. Furthermore, he considered the additional two hours of travel time the move imposed on the father to be significantly onerous.

The Family Court of Australia upheld Dunkley J’s decision. They refuted the mother’s ground of appeal that insufficient consideration had been given to the practical difficulties she faced returning from the Central Coast, considering 30 days to be a reasonable amount of time to facilitate the move.

The mother submitted that the Dunkley J had not taken into account that responsibility for the financial support of the child fell almost exclusively on the mother. The Full Court found that given the lack of evidence before him it was unsurprising that he did not give the financial implications of the move significant consideration.

Another ground of appeal was that Dunkley J gave insufficient regard to the best interests of the child and too much regard for the increased travel time the move to the Central Coast would impose on the father. The Full Court did not accept that this was the case and noted that relying on the issue of weight of consideration is a very difficult manner for an appeal of interim orders to succeed.

The mother submitted that further evidence could be adduced that would have produced a different result. The Full Court found that the evidence was likely to be relevant in making final orders but did not establish that the interim orders were erroneous.

The Full Court concluded that Dunkley J’s interim orders were open to him given the evidence that was before him. The appeal was dismissed with the mother being ordered to pay the father’s costs of the appeal.

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Brindle & Otto: Considering the mother’s need for assistance

The decision of Brindle & Otto [2015] FamCAFC 164 concerns an appeal of a decision by Judge Dunkley on 20 February 2015 to return the six children of the parties from Melbourne to which the mother had recently moved them. Dunkley J was satisfied that if the children continued to live in Melbourne, they would not be able to spend time with the father and their relationship with him would cease and ordered they be returned.

Dunkley J appreciated that the mother was in a difficult financial position and accepted that the move to Melbourne reduced her rental costs. However, he was concerned with the impact on the father’s relationship with the children. While the move may have improved the living circumstances of the children it was nevertheless in their best interests to have a continuing relationship with their father.

Since the move to Melbourne the father and his children had only intermittent contact via Facebook and he noted that the father did not have the financial means to visit them in Melbourne. Dunkley J concluded “an order that the mother return the children to live in Western Sydney is, on the balance, in the children’s best interest as the best means of enabling those children to have any sort of relationship with their father.”

The mother challenged this decision on a number of asserted errors. She asserted that Dunkley J had proceeded on an erroneous basis regarding the father’s commitment to assisting her with the care of the children. She also argued that he made an inconsistent finding that the move had improved the children’s living circumstances and yet “the children achieved little benefit by moving”. Dunkley J also, she argued, failed to consider the practical consequences of not having access to family that consistently helped her care for the children in Melbourne.

The Full Court found that Dunkley J failed to take into account that the mother had sought orders that the father spend significantly more time with the children than what he proposed. His Honour’s finding that the children achieved little benefit by moving cannot be reconciled with the fact that the mother paid $300 less rent per fortnight in Melbourne and received further financial assistance from her family.

Furthermore there was a failure to consider the mother’s need for more assistance than the three hours per week that the father proposed. This practical assistance was available only in Melbourne where the mother had access to her family.

In their judgment the Full Court noted that given the parlous financial circumstances of the parties the less burdensome financial circumstances in Melbourne was a significant factor in favour of permitting the relocation. The lack of willingness on the part of the father to offer the level of assistance that was available in Melbourne also weighed heavily in the mother’s favour.

Given that Dunkley J had not considered these highly relevant matters the Full Court ruled that appellate intervention was required. The proceedings were remitted for a rehearing by a judge other than the primary judge.

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Phillips & Hansford (No. 2): Appealing the trial judge’s division of the pool of assets

The decision of Phillips & Hansford (No. 2) [2015] FamCAFC 138 concerns an appeal of a property order that the husband argued was unreasonably favourable to the wife and based on an erroneous calculation of their assets. The trial judge ruled that the contributions of the parties to the asset pool were equal. The trial judge then took into account the wife’s mental illness and lower earning capacity when compared to the husband to make an adjustment of 15 per cent in her favour.

The husband submitted that the trial judge made a series of errors when calculating the asset pool. The trial judge had miscalculated an extension of his mortgage and a liability he incurred in order to pay the wife $15,000 as part of an interim property settlement. Also, a further $10,000 payment he made to the wife was mischaracterised as spousal maintenance rather than an interim property settlement. The husband was successful in appealing these errors.

While the trial judge deemed the contributions to the pool of assets to be equal the husband argued that contributions should be ruled to be 10 per cent in his favour. The husband introduced $40,000 into the asset pool initially compared to the wife’s $25,000 and his parents contributed $23,500 more to the asset pool than the wife’s parents had.

The Full Court took all matters into account, particularly the wife’s parents’ provision of whitegoods and holidays over the course of the relationship and ruled that the trial judge’s finding of an equal contribution was not erroneous. In reaching this conclusion they also rejected a claim by the husband that the trial judge had incorrectly calculated his equity in the marital home, which reduced his apparent contribution.

The husband submitted that the adjustment of 15 per cent on account of the wife’s mental health issues and lower earning capacity “was manifestly excessive and plainly unreasonable”. To support this he claims the wife had access to “significant financial resources” in the form of a family trust. He also submitted that he would be moving to Adelaide and faces difficulty finding employment that provides a similar level of income to what he had previously.

The Full Court deemed this percentage adjustment not so large to warrant their intervention. They noted that the property pool was not substantial and so the wife would not be receiving a large sum. They had no evidence to support his claim of the wife having access to financial support from the trust and did not accept that his move to Adelaide would significantly undermine his employability. The husband’s appeal of the adjustment in favour of the wife was dismissed.

The Full Court’s judgment emphasised the difficulties faced by appealing decisions based on disproportionate adjustments. While they acknowledged different judges might adopt different percentages they believed that “the trial judge’s determination falls within the generous ambit of a trial judge’s discretion.” In refusing to adjust the trial judge’s decision the Court partially relied on Stephen J’s judgment in Gronow v Gronow in which he states “it is never enough that an appellate court, left to itself, would have arrived at a different conclusion.”

This decision demonstrates that in order for a division of the pool of assets to be overturned there is a need for the division to be a significant departure from what is considered reasonable.

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Mohsen & Collings: Adjourning family law proceedings due to criminal charges against the father

The case of Mohsen & Collings [2015] FAMCA 583 involves an application on behalf of the mother to adjourn proceedings due to the father being subject to pending criminal proceedings for offences against the mother. The applicant father filed an application seeking parenting orders in relation to the child on 17 July 2013. On 13 July 2015 the father attended a Police Station where he was interviewed in relation to various allegations. The father was subsequently charged with assault occasioning actual bodily harm on the mother on two occasions and aggravated sexual assault of the mother.

The mother was interviewed by the single expert Dr C in late September and early October 2014. In his report to the Court he found that she was undergoing “significant anxiety” which was exacerbated by the father’s alleged family violence. The mother’s apprehension of the father and his family had resulted in her attending Court under the protection of a safety plan and it was anticipated that she would have to present evidence during the father’s criminal proceedings.

The Court cited the principles outlined by Wooten J in McMahon v Gould that primae facie the father is entitled to have his action tried in the ordinary course, however there must be a consideration of “the balancing of justice between the parties”, taking all circumstances into account. The Court also considered the judgment of Re K, which provides that the interests of the child are paramount, with the interests of the parties being a secondary consideration.

The Court took a number of factors into consideration when deciding whether to allow an adjournment. Any parenting orders made by the Court could not override the bail conditions the prohibiting any contact between the father and mother or their child, and so parenting orders would have no short-term effect on the parties. Another consideration was that the result of the criminal law proceedings are relevant to the family law matter and so it was preferable for the final orders to be made following the conclusion of the criminal law proceedings.

Other factors in favour of allowing an adjournment is that the father’s bail conditions disallowed him having contact with the mother or child and these conditions were reflected in the current interim orders and the Court’s view that the adjournment was in the best interests of the child. The evidence provided by Dr C was also taken into consideration and weighed in favour of ordering an adjournment of proceedings.

Taking all these factors into account, the Court ordered that the hearing dates of the trial be vacated and the present family law proceedings be adjourned to await the outcome of the father’s criminal proceedings.

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Macris & Galanis: Father’s appeal of parenting and property orders

In the case of Marcis & Galanis [2015] FamCAFC 234 the father appealed parenting orders that reduced the amount of time he would spend with his children and property orders that he said did not sufficiently recognise his contributions and unlawfully favoured the mother.

The father challenged the judge’s approach taken in the reopening of the parenting matter, argued that there was a failure to provide adequate reasons for limiting the children’s time with him and disputed that the time he had been granted under the orders amounted to substantial and significant time as defined in ss 65DAA(3) and (4) Family Law Act 1975 (Cth).

The father challenged the judge’s decision not to adduce further expert evidence before delivering a final judgment in the reopening of the parenting matter. The Court considered his Honour’s finding that the expert evidence available to him at the time was sufficient to be open to him. Taking into account the undue delays the parties had already experienced, his decision to adjudicate on the current evidence at hand was found to be reasonable and thus this ground of appeal was dismissed.

The Court rejected the father’s claim that the trial judge had inadequate reasons for ordering that the children live with the mother and spend time with him. Expert evidence provided by Dr [H] stated that child [X] wished to spend more time with the mother and that the current equal time arrangements were not working. Dr [H] submitted to the Court that the “events since 2011 have shown that these parents lack the benchmark qualities which are required for 50:50 shared residential care to work well.” The Court found that the ground was not made out as “his Honour carefully considered the proposals of the parties, their evidence and the expert evidence”.

The father’s ground of appeal that the orders did not provide him substantial and significant time with the children was found to have no substance. It was open to the trial judge to give orders providing more substantial and significant time than what was granted to the father. However, the conditions provided by s 65DAA(3) of the Act for time to be substantial and significant were all met by the orders of the trial judge.

The father was found to have several valid grounds of appeal of the property orders. His submission that the trial judge failed to take into account several facets of his contributions was substantiated. These included the use of a $60,000 redundancy to discharge the mortgage on the wife’s property, his decision to work full-time throughout the marriage, his significant contributions to the care of the children and his undertaking of renovations of the wife’s property. The extent to which his contributions were overlooked was found to be an error requiring appellate intervention.

Furthermore, there were several other errors found in the trial judge’s consideration of the property matter. It was found that the trial judge overlooked the father’s submissions regarding the value of his superannuation, motor vehicle and personalty. Taking all these factors into account, the Court came to the conclusion that “his Honour’s ultimate conclusion concerning the comparative value of the parties’ contributions is fatally flawed”.

The Court found that the father had failed to establish error in relation to the parenting orders and so the parenting appeal was dismissed. His appeal of the property orders was allowed and the previous orders were set aside, with the property proceedings being set for a rehearing in the Federal Circuit Court.

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Stacey & Woden: When the risk of child abuse necessitates the Court’s intervention

The case of Stacey & Woden [2015] FamCA 1107 concerns the parenting arrangements for nine-year-old G and his seven-year-old sister, D. The child G lives with his father and spends time with his mother occasionally. The child D spends equal time with each of her parents.

The mother ceased to participate in the proceedings and instructed her lawyers to seek leave to withdraw. The father asked the Court to dismiss all applications and bring the proceedings to a close.

However, the Independent Children’s Lawyer submitted that it was open to the Court to make a finding that one or both of the children are at risk of sexual abuse in the unsupervised care of the father. To bring the proceedings to a close would continue the existing arrangements that involve both children spending extensive unsupervised time with the father.

The Child Protection Services had completed their enquiries and reported to the mother that “Based on the information provided to Child Protection Service during our investigation and information from police investigation, [we have] substantiated that the children are at risk in their father’s care”.

This was contradicted by the mother’s submissions to the Court, who expressed that “the arrangements worked well and I have no concerns for the welfare of the children whilst in his [the father’s care]”. Further that “I believe the children are safe in [the father’s] care”. Despite both parties consenting to the current parenting arrangements continuing, the Court considered the concerns regarding the father to be a justiciable controversy requiring the Court’s intervention.

Given the evidence regarding the risk of sexual abuse of the children, the Court was satisfied that unsupervised time with the father presented an unacceptable risk of abuse of the children. The Court also noted that the evidence is untested, and that they were not satisfied that that the children are necessarily at risk of sexual abuse by the father. However, they noted their obligation to protect the children from potential harm.

In order to fulfil this obligation the Court made a series of protective orders. Restraining orders were implemented forbidding the parties from abusing the children or exposing them to pornography. An injunction was made precluding the exercise of parental responsibility by the father. The Independent Children’s Lawyer was permitted to continue to carry out his obligations to ensure the children’s continued protection from harm. The Court discharged the previous interim orders as they were ignored by the parties.

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Potentially Polygamous Marriages Allowed in Australia

The Full Family Court has found that potentially polygamous marriages entered into in foreign jurisdictions are recognised by Australia in Ghazel v Ghazel and Anor [2016] FamCAFC 31

Background:

Mr and Mrs Ghazel were married in mid-1981 in Iran, a country whose law permits husbands to take up to three additional wives in certain circumstances. The union was therefore ‘a potentially polygamous marriage’. By 2007 the couple, along with their two children, had moved to Australia and become citizens. The couple separated around 2008 and in 2013 Mr Ghazel married Ms C in Iran. Mr Ghazel’s marriage to Mrs Ghazel and Ms C are both considered valid and current by Iranian authorities. In 2014, Mrs Ghazel sought a declaration from the Family Court of Australia that her 1981 Iranian marriage be valid in Australia under section 88D of the Marriage Act (the Act).

Section 88D comes under Part VA (s 88A – 88G) of the Act which was inserted in 1986 to give effect to The Hague Convention on Celebration and Recognition of the Validity of Marriages (The Hague Convention) which allows foreign marriages to be recognised in Australia provided they don’t fall into any exceptions listed in Part VA. In 2004 the Marriage Amendment Act (the Amendment Act) inserted the definition of marriage into the act for the first time under section 5(1) stating marriage ‘means the union of a man and woman to the exclusion of all others, voluntarily entered into for life’. The Amendment Act also inserted section 88B(4) stating ‘to avoid any doubt, in this part (including section 88E) marriage has the meaning given by 5(1)’ and section 88EA that a union solemnised in a foreign country between ‘a man and another man or a woman and another woman must not be recognised as a marriage in Australia.’

Trial:

Ms Ghazel’s application was dismissed by Hogan J who held that given the definition of marriage under section 5(1) which is applicable to the recognition of foreign marriages ‘means that a marriage solemnised in a foreign country must be monogamous for it to be recognised in Australia’ and that therefore a potentially polygamous marriage cannot be recognised in Australia.

Held by the Full Family Court:

Given that the ruling by Hogan J had the potential for couples who are married in countries where potentially polygamous marriages are valid to become un-married when the couple becomes domicile in Australia, the Attorney-General was requested to intervene when Ms Ghazel appealed to the Full Court. The court untimely upheld the Solicitor-General’s submissions that a foreign marriage will be valid unless it comes under one of the exceptions in Part VA and that a potentially polygamous marriage is not one of the exceptions. The Solicitor-General pointed out that section 88D would only preclude the recognition of a second marriage citing a ‘first-in-time-rule’. The Solicitor-General relied on intention of Parliament in 1986 to give effect to The Hague Convention which contemplates polygamous marriages. It was also held that the 2004 amendments to the Act did not change this position since the intention of parliament was to preclude same-sex marriages not potentially polygamous marriages. It was also accepted that that the words ‘to the exclusion of all others’ supported the conclusion that a potentially polygamous marriage can still be recognised.

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Determining the parents of surrogate children

In Australia, each State and Territory (except the Northern Territory which has no law on the topic) has different laws governing surrogacy. Common to all is that they permit ‘altruistic’ arrangements but not commercial arrangements in Australia. New South Wales, the ACT and Queensland have made it an offence for those in their jurisdiction to enter into international commercial surrogacy arrangements. This means it is not a crime for those from other jurisdictions to enter international commercial surrogacy arrangements, but it can be difficult to obtain the sought after ‘parenting orders’ available in some jurisdictions to transfer the parentage from the surrogate to the parties who commission the surrogacy. But the Family Court of Western Australia has reiterated that the persons who commission a child born as a result of artificial conception procedures where the birth is the result of surrogate arrangements are not deemed the children of the persons who commissioned the surrogacy.

The primary issue for consideration in Farnell & Anor and Chanbua (2016) FLC 93-700; [2016] FWCA 17 was whether ‘Pipha’, who was born to a surrogate mother in Thailand in 2012 having been commissioned by Mr and Mrs Farnell and who has lived with the Farnell’s in Western Australia since months after her birth, could be ordered to live with her surrogate mother Mrs Chanbua and her husband. The court held that whilst Pipha could not be considered the Farnell’s child under federal law because she was a surrogate child and that Mr and Mrs Chanbua were under state law the parents of Pipha, that she should not be removed from the Farnell’s since they are the only family she has even known. In coming to this conclusion, the judge gave consideration to the fact that Pipha has strong attachments to the Farnell’s and has received quality care from them.

In judgment that tackles a myriad of issues from the jurisdiction of the court, law reform, complex statutory schemes relating to adoption, naming of children, surrogacy, marriage and family, the Family Court of Western Australia gave consideration to the submissions of Mrs Chanbua as well as the DPP, Human Rights Commission, and the Independent Children’s Lawyer. Despite the fact that some of these submissions highlighted that Mr Farnell was a convicted sex offender, and that the Farnell’s may be prosecuted for perjury (for statements made un-related to what was being determined in this case), the court ultimately held that evidence suggested that Mr Farnell had led an exemplary life since leaving prison some 17 years ago, and that Pipha was happy, had grown to love the Farnell’s and regarded them as her parents (at 377).

In commenting on commercial surrogacy, the court noted that they had approached this dispute from the perspective of what would be best for Pipha and that it doesn’t indicate its approval of commercial surrogacy, but that it is for others to decide whether the ‘manifest evils associated with overseas commercial surrogacy can be overcome by importing the problem into Australia’.

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Single mothers by choice: A summary of Fiona Kelly’s article “Parenting outside the normative framework”

In “Parenting outside the normative framework: Australia’s single mothers by choice” published in the Australian Journal of Family Law (2015) 29, Fiona Kelly Senior Lecturer at La Trobe University Law School, outlined the legal issues faced by un-partnered women who choose to become single mothers through assisted reproductive technologies (ART). Kelly finds that single mothers by choice (SMC) are not yet recognised by the Family Law Act 1975 (Cth) (FLA) which favours a two parent and mostly biological model, the outcome being that children born to SMCs are treated differently to those born to women who are partnered. Kelly suggests that a federal parentage Act would be to most appropriate way for SMCs and their children to receive clarity of their legal status.

The article is divided into four parts.  The first part briefly examines the rising trend of SMCs in Australia. It notes that whilst there has been little research into the trend in Australia, it is probably comparable to that of the United States of America where SMCs are typically aged between 35 and 40 years old, well educated, middle class, financially secure, heterosexual and white.

The second part is a comparison of the Australian social and legal landscapes in which SMCs find themselves. Kelly notes that like other “non-normative families” such as a gay or lesbian families, women who decide to become SMC are receiving wide-spread social support. The legal landscape at the federal level is, however, shifting in the other direction, making it more difficult for an SMC to be recognised as a sole parent family. In particular, Kelly points out that changes made to the FLA in 2006 presented a two-fold challenge to SMCs. The first was the tying of the child’s best interests to having a relationship with both of their biological parents. The second is the creation of a presumption in favour of equal shared parental responsibility.

The third part of the article looks at legal parentage, and in particular legislative presumptions on the topic. Kelly notes that Australian states and territories have taken a progressive view of legal parentage highlighting recent recognition of the parentage of a birth mother’s female partner, and the preclusion of a sperm donor from legal parentage unless he is the mother’s partner (in force in Victoria, ACT, NSW and Queensland). At the federal level, however, Kelly points out that s 60H of the FLA, the operative part pertaining children born as a result of ART, only expressly precludes the legal parentage of a donor where the mother has a partner.

In her examination of the case law surrounding s 60H, Kelly notes the courts have also tended to favour the “expansive” view, an approach which allows the court to consider all the parentage provisions of the FLA when determining the legal parentage of a child. This view provides for the application of the best interests test and thereby accept that the biological father may have some role in the child’s life, in the form of parenting orders at least, or legal parentage at the most. This is in opposition to the “restrictive” approach which would interpret s 60H as a comprehensive statement as to parentage where ART is used, capable of expansion only by virtue of a prescribed state or territory law. The latter approach is Kelly’s choice moving forward.

The expansive approach, however, is the one preferred by the Family Court at present and is illustrated by the most recent decision on the s 60H to date: Groth v Banks [2013] FamCA 430. Groth held that the man who donated sperm to an un-partnered woman in Victoria was the legal parent of the resulting child, in part because he was known to her at the time. The outcome of the decision is a warning to SMCs that sole parentage will be prohibited where the biological father is known.

After an in-depth examination of the decision in Groth, which highlights some curious assertions made by Cronin J which overlook the fact that unknown donors may later become known to the child, Kelly provides some recommendations for reform. She suggests the obvious start is to make the federal law consistent with the state and territory laws, in particular that s 60H should provide an exhaustive definition of parent where a child is conceived though ART. She also suggests that s 60H should reflect the diversity of Australian family structures. And finally that the remainder of Pt VII (in which s 60H resides) should be reviewed so as not to pose a barrier to a court determining that a child only has one parent.

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