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’.

Boyce Family Law

Divorce Lawyers Sydney

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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.

Boyce Family Law

Family Lawyers Sydney

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Significant changes for the Federal Circuit Court

News today has revealed dramatic changes to the way the Federal Circuit Court handles hearings in relation to Indigenous families.

According to the Australian, the court – which handles the great majority of family law matters – will become more accessible to Indigenous families in a number of ways, inculuding:

1. Holding Family Law hearings in Indigenous health centres, the first of which is scheduled to occur in La Perouse, one of Sydney’s largest Aboriginal communities.

2. Setting up new, easier procedures for grandparents who wish to take emergency court action involving children.

3. Looking at ways to involve extended family members – such as aunties and uncles – in proceedings involving children.

4. Simplifying court documentation and putting more towards community education.

5. Introducing cultural training for judges and traineeships for Indigenous people.

When interviewed by the Australian, Chief Judge John Pascoe said that the court environment was perceived by many Indigenous families to be intimidating:

For me, access to justice is about people being able to come to the court. How do we make it less threatening, how do we make it easier for people?

Historically, the relationship between Indigenous people and the court has been problematic. A longstanding association between the legal system and the removal of indigenous children has made many Indigenous people hesitant to get involved in any court processes.

Additionally, existing disadvantage and a lack of services – particularly in rural communities – has resulted in difficulties that are unique to Indigenous people.

While the Family Law Act explicitly requires the court to take into account ‘any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders’ in assessing a child’s best interests, there has previously been a lack of culturally appropriate options for Indigenous children, and the aforementioned lack of services can make it difficult for a child to retain a connection with their cultural background.

Court reforms, however, are of significant benefit in changing this. The end goal is to reduce the rate at which Indigenous children are removed from families:

Indigenous children were 10 times as likely to be placed in care in 2012 and that rate has been increasing since 2000, ­according to the Australian Institute of Family Studies.

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Gardiner & Rivers: De facto spouse restrained from being near children

On 24 January 2014, the Federal Circuit Court handed down the decision of Gardiner & Rivers [2014] FCCA 76.

This matter involved a mother and father who separated in 2010 after three years together. They had two children, a 6-year-old and a 3-year-old.

The mother had sole parental responsibility for the children. The father spent little time with the children, and his own father was required to be present when he did have the children. The mother applied to the courts to restrain the father’s de facto partner from being present during the children’s time with the father, while the father sought substantial and significant time with each of the boys.

In this matter, Judge Lindsay was to consider whether the de facto partner could present a risk to the children.

The de facto partner, referred to in the judgment as “Ms S”, had a history of self-harm and depression. In particular, there was focus on an incident in which Ms S stabbed herself in the abdomen, but accused the mother of the incident, and maintained the accusation for four weeks after the stabbing. As a result, Ms S was convicted of perjury arising out of her false allegations against the wife.

When making decisions relating to parenting orders, Section 60CA of the Family Law Act [1975] provides that the paramount consideration must be what is in the best interests of the children.

Despite a psychiatrist and a family report writer each making recommendations that the de facto partner did not present a risk to the children, Justice Lindsay was not satisfied that this would be the case:

I am apprehensive to some degree about Ms S having an ongoing opportunity to spend time with the children… I have an apprehension about her being continuously or regularly present in the household in which the children continue to develop a relationship with their father.

His Honour continued:

The children are at some degree of risk from interacting with her. I do not want to overstate the risk but she may well again, if drinking and unsupported emotionally by the husband, self-harm or essay self-harm while the children are in her household. It is an unlikely but not a remote possibility. On the other hand, her harming the children directly is a remote possibility.

It was ordered that the children continue to live with the mother and have alternating Saturdays and Sundays spent with the father. It was also ordered that an be injunction granted, restraining the father from causing or permitting Ms S to be present at any time that the children were with their father.

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Urgent calls for Australian government to do more about family violence

The Easter long weekend saw five women and children in Australia die from a result of domestic and family violence.

Two, in particular, were high-profile incidents that have made headlines across Australia.

The first occurred last Wednesday afternoon and involved a woman named Fiona Warzywoda, who had been with her partner for 18 years. She had separated from him just before Christmas, and on Wednesday morning had appeared in a court in the Melbourne suburb of Sunshine to take out intervention orders against her former partner.

According to police, Ms Warzywoda had left her solicitor’s office just minutes before she was allegedly stabbed to death in the middle of a busy shopping strip in Sunshine. Her ex de facto husband, Craig McDermott, handed himself in to police on Thursday morning. Mr McDermott appeared in the Melbourne Magistrates Court later on Thursday night and was charged with the murder.

The second incident occurred on Easter Sunday in the Melbourne suburb of Watsonia. Two little girls named Savannah and Indiana, aged 3 and 4, were found dead. The girl’s father, Charles Mihayo, has been charged with their murder; further circumstances have not been explained. According to reports, the parents of the girls had been married but recently separated.

The horrifying events have drawn attention to the Australian statistics surrounding domestic and family violence.

Last year, information from the Australian Institute of Criminology found that at least one woman a week in Australia is killed by a current or former partner. It further found that 36 per cent of all homicides take place in a domestic setting, 73 per cent of which involve a woman being killed by her male partner.

Now, many are calling for more to be done about raising awareness of just how significant the problem of domestic and family violence has become.

While White Ribbon Australia does much to end men’s violence against women, there have been requests for the government – and especially the prime minister, Tony Abbott – to step up and do something about domestic violence, just as he voiced a plea to end drunken street violence after the death of Daniel Christie in December 2014.

Journalist Clementine Ford wrote an opinion piece for Daily Life yesterday, stating:

Violence against women and children in this country is in a state of national emergency, and yet it receives scant attention. I applaud the efforts of state governments to combat the effects of ‘coward punches’ on our young men, but I question why the perilous state of women’s safety is so routinely ignored and downplayed. Street violence has claimed the lives of young men, but at approximately 1/7th the rate of that of domestic homicides.

Just yesterday, in the wake of all these tragedies, Domestic Violence NSW – the peak body for specialist domestic and family violence sector organisations in NSW – launched the No Excuse campaign, which aims to highlight that there are never any valid excuses for domestic and family violence.

CEO of Domestic Violence NSW, Tracy Howe, said:

Australia has had a gutful, enough is enough. Too many lives are being lost and there are there is no excuse for violence against women and children, ever.

Domestic and family violence is killing women and children in horrific numbers. If Australians were dying with this regularity and in these numbers as a result of terrorism, food poisoning, natural disaster or coward punches on the streets, the nation would be united by outrage and grief.

Domestic and family violence is a national outrage. There are no excuses for these murders. It is time for government, non-government and community to acknowledge the horror and to urgently come together to find solutions for this.

It has been asked for all Australians to sign a petition which calls on our leaders to recognise domestic and family violence as a national emergency and to take urgent action against the violence.

If you would like to sign it, please click here.

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Victorian judicial system “failing” victims of family violence

The Age newspaper has reported on just how significant the problem of family violence has become in the state of Victoria.

Despite the State Government investing more than $90 million this year towards preventing family violence, there have been numerous incidents in which serial offenders have repeatedly breached intervention orders issued by the courts.

The Sunday Age quoted Victorian Police data from the past financial year, which revealed that:

– More than 820 offenders breached intervention orders at least three times;
– 200 of the 820 offenders violated orders more than five times and 15 committed more than 10 separate breaches in one year; and
– 88 people were charged with breaching an order three times in just 28 days.

The newspaper also noted that the courts are processing a record number of breaches – that is, more than 12,000 last year.

They noted that, as a result, the judicial system is “overworked” and that courts “struggle to process” the breaches. This has resulted in the failure of protecting victims of family violence, as abusers are able to harass victims while still awaiting trial for previous breaches.

There is currently a notable focus on family violence in Victoria, where family violence cases have been making headlines for months – particularly after the death of 11-year-old Luke Batty earlier this year.

Last week, the Victorian government also proposed new laws relating to family violence that would make it a crime to not disclose a case of child sexual abuse. The crime carries a maximum three-year imprisonment term.

The proposed laws contain a specific exemption for people who fail to report child sex abuse because they feel their safety is threatened – however, victim support groups are still concerned that the mothers of abused children will be too scared to report their abusive partners, and that these women may end up being unfairly jailed.

Victim support groups are also highly concerned that, despite new laws being put in place, there is still not enough focus on just how dangerous family violence can be.

The Age quoted Fiona McCormack, chief executive of Domestic Violence Victoria, who referred to there being 29 family-violence-related deaths in Victoria alone last year:

If we saw that many people being killed on public transport I think there would be a lot more of a response.

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Proposed Victorian child abuse laws spark debate

The Victorian government has proposed new laws relating to family violence that have the potential to make a significant difference in the way these matters are handled by the courts.

The laws, proposed by the Napthine government, would make it a crime to not disclose a case of child sexual abuse. The crime carries a maximum three-year imprisonment term.

Although the proposed laws contain a specific exemption for people who fail to report child sex abuse because they feel their safety is threatened, they have come to the attention of victim support groups who believe that the mothers of abused children will be too scared to report their abusive partners – and that these women may end up being unfairly jailed.

Attorney-General Robert Clark said:

The bill makes clear that the protection of children from sexual abuse is of paramount importance, while also recognising the domestic violence context in which child sexual abuse may be occurring. The legislation does not prevent any organisation informing police whenever and however the organisation becomes aware that abuse has occurred.

The proposed laws have already proved to be contentious, with the first debate kicking off this week on breakfast television.

Journalist and host of Studio 10, Joe Hildebrand, caused an uproar with his comments about the proposed laws during the show’s broadcast on the morning of the 2nd April.

Hildebrand was interviewing Rosie Batty, the mother of Luke Batty, an 11-year-old boy who was murdered by his father while at cricket training in January this year.

Greg Anderson, Luke’s father, suffered from mental health problems and was verbally and physically abusive towards Rosie Batty. Rosie told News Limited that while Anderson’s threats towards her were serious, she never feared for her or her son’s life.

Because of Anderson’s behaviour, intervention orders were made, which allowed Anderson to continue to have contact with Luke in public places. Tragically, it was in a public place where Anderson attacked Luke – striking first with a cricket bat and then with a knife.

Luke was not fearful of his father – it was Luke who had asked to spend “a few more minutes” with his father after cricket training. Rosie agreed, thinking her son was safe.

Rosie Batty has since made several media appearances in the hope that her son’s story will bring some awareness to family violence and just how dangerous it can be. However, her interivew on Studio 10 made it evident that she, a victim of family violence, is unhappy with the proposed Victorian laws.

Joe Hildebrand opened the discussion with the following:

Obviously you can’t help but feel a huge amount of sympathy for anyone who’s in an abusive relationship but … you have to get out, you absolutely have to get out. There are huge economic costs associated with that, yes there are often other things, but anything is better than staying in an abusive relationship. Frankly, to say that you’re going to not report a case of child abuse or child sex abuse by your partner because you are scared for your own safety, I’m sorry, it is not an excuse.

Rosie replied to Hildebrand, telling him that his comments were “misguided” and that she was “absolutely outraged”:

I was living in hope that because of Luke’s tragic death it would bring a huge awareness to family violence. This is beyond my comprehension how, again, the woman who is the victim is punished.

Joe needs to look at his views as a man and he needs to step up and get informed. Because when I hear comments like that I am so saddened that the focus is still on the woman. Where the hell is the perpetrator? Why isn’t he being jailed for three years?

Rosie also released a statement after the interview, writing that the onscreen debate “has raised a huge opportunity for discussion and that has to be a good thing. Joe has raised comments that are very popular amongst both men and women and by discussing why this has raised such heated debate will make all of us wiser and more informed”.

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Tindall & Saldo: Family violence and the court

A five-year-long custody dispute in the Family Court has not only been making headlines, but also testing how well the legal system is able to handle family violence.

The matter involves a couple that have been given the pseudonyms Ms Tindall and Mr Saldo; they have been fighting over their young daughter since their relationship ended in 2008.

The main issue is their dispute over Mr Saldo’s history of family violence. In 2007, at their home in Cambridge Park, Mr Saldo tied the child to a chair and swung a samurai sword at her. Mr Saldo also bashed Ms Tindall over the course of their relationship.

Mr Saldo was to go on trial for the behaviour in 2010; however, before the criminal trial could happen, the couple came before a court to determine parenting arrangments. Ms Tindall told the court that she was concerned that Mr Saldo would act on threats to kill her and her child. Mr Saldo responded, telling the court that Ms Tindall had a history of making up allegations, and that her fearful behaviour was an act.

Judge Stewart Austin ordered that Mr Saldo continue to see the child for two-hour weekly visits at a supervised contact centre. His Honour’s reasoning was that the incident had occurred many years earlier, and that the pending criminal proceedings did not constitute ”a change in the family dynamic”.

”The father’s decision to publicly admit his past violent behaviour changed nothing about the history of the parties’ relationship,” Justice Austin said. ”His pleas of guilty were only a vindication of the mother’s allegations of past domestic violence.”

Fearing for her daughter’s safety, Ms Tindall stopped dropping her child off at the weekly visits. She was then reprimanded by the judge and convicted of 20 breaches of parenting orders.

Ms Tindall is now appealing against her convictions in the Family Court of Australia. Dr R, a Family Court psychologist involved from the beginning of the dispute, has also told the court that he had originally agreed with Mr Saldo and described her as “calculated and brazen”.;

However, when Mr Saldo entered a guilty plea to his criminal trial and was convicted to five years in prison, Dr R admitted he had understated the degree of violence and had never been more wrong in his 20 years of preparing expert reports.

If Ms Tindall’s appeal is successful, it has the potential to change how family violence and domestic abuse is handed by the legal system.

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Roberts & Waters: Risk of harm to the child

On the 31st of January, 2014, the Family Court handed down the decision of Roberts & Waters [2014] FAMCA 34 (referred to as R & W); it involved the best interests of the child, and determined whether the father posed an unacceptable risk of harm to the child.

The Family Law Act 1975 (Cth) focuses on the importance of both parents playing a meaningful and active role in the lives of their children after they have separated – unless, of course, it is contrary to the child’s best interests. That said, an important aspect of this objective is protecting children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence. This very issue of family violence was a concern in R&W.

R&W involved a separated couple and their child from the relationship, a five-and-a-half-year-old boy. The couple met while the father was a prison inmate, serving time for a charge relating to attempted murder; he also had a lengthy criminal history, including two convictions for assault. Once he was released from prison in 2005, R & W were in a relationship for a few years, but separated in 2009.

The child continued to live with the mother after the separation, and at one point the mother sought an AVO against the father for her protection, which he was charged with contravening. Various interim orders were made for the father to spend time with the child; however, only one overnight visit with the father was permitted by the mother.

Ultimately, the mother and father did agree that once the child was of school age, overnight visits with his father were in his best interest; the mother had no concern that the father would ever harm his child. However in the meantime, “she did not believe that he had any understanding of the emotional and developmental needs of young children”.

A Family Consultant prepared a report of her assessment of the child and his parents. The consultant’s overall recommendations were that while the child had developed a good relationship with his father, she had serious concerns about the father’s parenting capacity and – without a psychiatric assessment- could not make recommendations about the time that the child should spend with him.

Justice Kent considered the submission made by the Family Consultant, as well as the submission made by a consultant psychiatrist who carried out a psychiatric assessment on each of the parents.

His Honour said that he was “not satisfied that the mother is genuinely fearful of the father or concerned that his behaviour may be detrimental to the child”, and noted that the mother had ultimately consented to the child having overnight time with the father.

While Justice Kent still considered whether the father’s behaviour raised concerns about an unacceptable risk of harm to the child, he determined that he was not satisfied that the father’s time with the child should be restricted because of his behaviour.

As a result, it was ordered that the child was to live with the mother, while also spending regular weekends and time during the school holidays with the father.

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Batkin & Batkin: Mother to be arrested if she continues to disobey orders

The recent family law case of Batkin & Batkin [2013] FamCA 44 involved a separated couple and three children that had been born of the relationship.

The trial initially came before Justice Murphy in November 2011.  At the time, Murphy J adjourned the parenting trial until February 2013, and made interim parenting orders by consent of the parties (referred to as the 2011 Orders).

The aim of the 2011 Orders was to reintroduce the father into the lives of the children; they’d had no direct time with him for over four years, due to a “longstanding dysfunctional relationship” between the parents.

The 2011 Orders included orders to engage with a therapist, and follow directions given by the therapist, with a view to re-establishing the relationship between the children and the father.

However, at the commencement of the final trial of parenting proceedings in February 2013, affidavit evidence submitted by the therapist disclosed that:

 

  • the mother had opted out of the counselling process following the 2011 Orders, and that she had indicated to the therapist by way of SMS message that this was “because the boys do not wish to see their father”; and
  • the boys did not express any concern about spending time with their father, they appeared more to be echoing the views of their mother rather than expressing their own independently-formed opinions.

In reviewing the evidence, the Court observed that the mother “appears to have a complete block so far as recognising the needs of [the] children to be able to form their own views of their father”.

As a result, Justice Kent was concerned that the boys had no opportunity to form their own views of the father; they had simply “regurgitate[d] the views expressed by the mother…and…her negative views of [the father].”

As a consequence, Justice Kent was concerned not to make final parenting orders in the matter until the father had a proper opportunity to re-engage with the lives of his sons, and to demonstrate to the Court that spending unsupervised time with them was in their best interests.

The Court therefore adjourned the final hearing and made interim parenting orders, which included:

  • the father would spend four hours per month supervised time with the boys at a nominated contact centre; and
  • at the end of six months, a report would be produced about the outcome of the father’s time with the boys to assess the father’s wish to graduate ultimately to unsupervised time with the boys each alternate weekend.

To ensure that the mother did not continue to obstruct the process, Kent J also included orders which provided that a warrant be issued for the mother’s arrest should she not deliver the boys to the contact centre at the times required.

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