Tuesday, 30 September 2008
Typically, transfers made pursuant to an order from husband to wife or vice versa are exempt from duty; and transfers made pursuant to an order that ordinarily attract capital gains tax usually have rollover relief, which means that whoever takes the item of property has to pay all the capital gains tax when they dispose of that property.
Of course, the rules are not quite so simple, and if you want pay full freight on duty and capital gains tax, then an informal property settlement is about the best way to do it.
Some years ago a new client came to see me. I'll call her Joanne. She told me that she had an informal property settlement with her husband, Bob. Under the deal, the investment property was going to be sold, and Bob was to keep the proceeds. Bob was transfer to Joanne his interest in their home, which she was going to keep.
Joanne kept the home. Bob kept the income from the investment home (as after all he was to get the proceeds of sale).
When Bob went to sell the investment home, Joanne co-signed the contract of sale.
Some months later, Joanne got a big shock- something that would not have happened if they had made consent orders. Joanne got a friendly letter and assessment from the Commissioner of Taxation - she owed $9,000 in capital gains tax from the sale of the investment home. Imagine her shock!
When she came to see me, I told her that this would have been avoided if she had entered into orders. Yes, I know it was the "I told you so " variety, but she needed to know. I then said to her that she could go to court and seek a property settlement (the time limit had not kicked in yet).
Joanne decided that she would just borrow the funds to pay the Commissioner as she did not want to spend money in going to court as well.
Recently I was contacted by John. John decided, on his accountant's advice, to have a transfer of some property from one company (controlled by John and his wife Wendy) to another company (controlled by John alone).
While it was in the context of a split up, John and Wendy did not enter into orders. Result? John's company has been slugged $22,000 in stamp duty. John almost died of shock. John has now taken the matter to the Office of State Revenue in a bid to get exemption, but for the moment at least he is in a legal quagmire- which might have been avoided if he had advice from an accredited specialist like me- and structured his transfer differently, and with the benefit of orders.
Monday, 29 September 2008
Mr Peter Cole
Mr Cole holds a Bachelor of Jurisprudence and Bachelor of Laws from the University of Western Australia. He has been a senior associate with Robert Parkinson & Associates in Perth since 2005, and President of the Family Law Practitioners Association in Western Australia since 2006. Mr Cole has lectured part-time at the Edith Cowan University and in programs run by Relationships Australia. He has been an accredited family law specialist since 1992.
US: injunction to stop removal of child from country does NOT constitute right of custody under Hague Convention
I mention this because of a recent US Court of Appeals decision on what constitutes "rights of custody" under the Hague Convention.
The Hague Convention is the shorthand version for the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
A parent, or some other person can only get a child back to the first Hague country from the second Hague country if the child were wrongfully removed or wrongfully retained and that removal or retention is in breach of the rights of custody of that person.
The US decision
The US Court of Appeals for the Fifth Circuit in Abbott v Abbott considered what to do when the mother wrongfully removed a child from Chile in admitted breach of an injunction [which in the US is called a ne exeat order] to prevent the child's removal and in breach of a Chilean law prohibiting that removal.
Both Chile and the US are Hague Convention countries.
The difficulty for the father was that in earlier Chilean court proceedings, although he had been allowed to have contact with the child, all of the custody rights to the child were ordered in favour of the mother.
The question then became- were the rights under the injunction order preventing the removal of the child from Chile "rights of custody" under the Hague Convention? The court held that they were not.
The father applied to the US District Court, which held that the rights under the ne exeat order were not rights of custody. He then appealed to the US Court of Appeals.
That court reviewed both US and international cases on point. The most significant was an earlier decision of the US Court of Appeals for the 2nd Circuit, Croll, where that court held (about a Hong Kong order) that an order allowing access and an injunction prohibiting the removal of the child from Hong Kong were not enought to constitute "rights of custody" under the Hague Convention. Croll determined that "rights of custody" was a bundle of rights and that breach of one right, namely the order to prevent the child's removal from Hong Kong, was not a breach of "rights of custody".
The court in Abbott, summarising Croll said:
The mother had the right to choose where the child would live within
Hong Kong, and the father had no control over her choice. Furthermore,
although the father could refuse to consent to the child’s removal from Hong
Kong, he could not require that the child live in another country; thus, he had
only a veto right over the child’s removal from Hong Kong rather than an
affirmative right to determine the child’s residence.
In the 11th Circuit decision of Furnes, the court held to remove the child from Norway to the US in breach of an injunction not to remove a child from Norway was a breach of the father's rights of custody. The court in that case noted that the mother could by Norwegian law decide where in Norway the child could live, but that by Norwegian law, both parties had joint parental responsibility which meant in this case that the non-custodial father had the right “to make
decisions for the child in personal matters,” including “decisions that affect the
The trial court in Abbott noted that:
the cases from other signatory states addressing the rights
conferred on a parent by a ne exeat order are “few, scattered, [and]
conflicting” and thus do not guide this Court in its consideration of
The Furnes court catalogued the foreign opinions on the issue, noting that courts in the United Kingdom, Australia, South Africa, and Israel have held that ne exeat rights do constitute “rights of custody” under the Hague Convention, while Canadian and French courts have reached the opposite conclusion.
The court in Abbott held (at first referring to the trial in the District Court):
The district court focused on the Hague Convention’s distinction
between “rights of access” and “rights of custody” and quoted from the
official history and commentary on the Hague Convention (which had also been
quoted in Croll and in Gonzalez), confirming that despite a discussion on the
issue, there was no agreement by the Hague Convention drafters to establish a
remedy of return for violation of “rights of access.”
The district court concluded:
Although Ms. Abbott’s removal of
[the parties’ son] violated and
frustrated the Chilean court’s order, so too
would the removal of a
child from a country in which any parent with rights
resided. Mr. Abbott’s right of access, however enhanced
protected by the ne exeat order, is simply not sufficient to
rights of custody that warrant the greater protection intended
the Hague Convention. This Court in no way condones Ms.
action. . . . [The child’s] residence in the United States
interferes with Mr. Abbott’s visitation rights, as established by
Chilean court. However, the Hague Convention explicitly creates
different set of remedies for those parents whose rights of access
frustrated by the custodial parent’s removal of a child . . . .
district court denied return of the child, finding that the father did not
establish by a preponderance of the evidence that his son’s removal constituted
a breach of “rights of custody” as defined by the Hague Convention.
We note that the ne exeat order prohibited either parent from removing
child from Chile without the consent of the other. The ne exeat order
the father a veto right over his son’s departure from Chile, but it
did not give
him any rights to determine where in Chile his child would live.
the Chilean family court, in its second order, expressly denied
request for custody rights and awarded all custody rights to the
We find persuasive Croll’s reasoning that the Hague Convention
distinguishes between “rights of custody” and “rights of access” and
ordering the return of a child in the absence of “rights of custody” in
an effort to
serve the overarching purposes of the Hague Convention would be
impermissible judicial amendment of the Convention.
We hold that ne exeat rights, even when coupled with “rights of access,” do
not constitute “rights of custody” within the meaning of the Hague Convention.
The Hague Convention
provides a remedy of return only for a parent who holds
“rights of custody.” The
father in this case did not hold such rights.
Sunday, 28 September 2008
The orders had been made following the July 2007 holidays when the child went to her mother in Sydney and did not return, the child apparently afraid of her father, with whom she had been living since separation almost 6 years before. Neville FM ordered that the child be returned to Canberra (where the father and the two grandmothers lived) and move week about between their homes.
The father appealed, saying that there was no reason that the child should not be returned to his care.
Whilst the child saw plenty of her dad on the weeks when she was with the paternal grandmother, it was unclear about how much time she spent with her mother, given that her mother lived in Sydney.
Justice Finn held:
As in most interim parenting decisions, it is impossible to predict what
will be the outcome of the final proceedings. It is particularly difficult in
this case where it is not clear to me what will be the proposals to be
considered at the final hearing, or indeed even the precise parties (at least on
the mother’s side) to those proceedings. In these circumstances there is much to
be said for maintaining the present arrangement, thereby avoiding unnecessary
disruption to the child. In other words, if I cannot be certain that there will
be final orders for the child to live with the father, it could well be
disruptive for the child to move him back to the father in circumstances where
he may be moved to some other home or homes as a result of a final hearing.
There is also the consideration that on the father’s proposal, the orders would
provide for alternate weekend (and half school holiday) time with the mother
with no provision for a role for the maternal grandmother; this would be a
significant change for the child, particularly on an interim basis...
It is important to observe that there was apparently no complaint or
criticism regarding the father’s capacity to care for the child during the six
year period prior to July 2007. But, similarly, no complaint or criticism is
apparently made by the father regarding either grandmother’s capacity to care
for the child, and indeed it seems that prior to these proceedings, the father
was prepared to involve the maternal grandmother extensively in the child’s
care. The mother’s capacity to provide for the child in the various ways in
question is unknown, but it appears that she has not for many years had the same
level of involvement in his care as the father or either grandmother...
However, in the submissions on behalf of the father, it was asserted
(albeit in the context of s
60CC(3)(j)) that “the presumption of shared parental responsibility applies
and there is no evidence at this stage to rebut it”. It was then further
submitted (in the context of s
60CC(3)(m)) that equal time is not practical because the mother lives in
Sydney, but that the father’s proposal would allow the child to spend as much
significant time with the mother as her living and working arrangements permit.
Thus, it would appear that the father seeks to rely on the presumption
contained in s
61DA and the matters in s
65DAA which arise as a consequence of the presumption to support his
proposal that the child live with him and spend time on alternate weekends with
In the absence of any argument before me as to how the
presumption in s 61DA
and the consequences of its application contained in s
65DAA, operate in a case where the dispute is between one parent and a third
party, it would not be appropriate for me to express any view on these matters,
except to say that I consider it appropriate in this case to hold that pursuant
61DA(3), it is not appropriate in the circumstances of this interim case, to
apply the presumption.
This conclusion would, in my view, mean that both
parents of this child retain the parental responsibility for the child which is
vested in them by s
61C of the Act....
It will have been seen that the conclusions
which I have been able to reach in relation to the s
60CC matters and which have direct relevance to the competing proposals are
the child has a good relationship with both parents and both
there is no criticism of the capacity of the father or either
grandmother to care and provide for the child; similarly there is no challenge
to the father’s attitude to the responsibilities of parenthood; the mother’s
capacities and attitudes in relation to the care of the child are unknown;
there is not sufficient evidence to find that the child would be at risk of
harm with the father;
the effect on the child of a change at this time in
his living arrangements which have been in place since September last year is
unknown, but there must be a concern regarding the disruption to him if those
arrangements were to be changed now only to be changed again after the final
hearing; further there must be some concern regarding the impact on him if the
significant involvement in his life of his maternal grandmother was to be
While the decision is clearly a finely balanced one, I
consider that on balance the child’s best interests would be likely to be best
served by maintaining, until the proceedings are finally heard, the present
week-about living arrangement with each grandmother rather than reverting to the
long-standing arrangement which existed prior to mid 2007 whereby the child
lived with the father.
She said a national effort - on the scale of the climate-change movement - was needed to protect the futures of Australian children.
For the full story from news.com.au - click here.
Saturday, 27 September 2008
The court authorised the abortion.
Both the parents consented to the abortion, and the whereabouts of the father were not known. Because the father was unrepresented, and supported the application, her Honour appointed another barrister as amicus curiae, or friend of the court, to provide a differing perspective to the court to assist it in its considerations.
The starting point in the judgment was a discussion of the parens patriae jurisdiction. Her Honour Justice Wilson held:
The history and nature of the parens patriae jurisdiction were succinctly
described by Chesterman J in State of Queensland v Nolan -
“ The jurisdiction appealed to is that which was
formally vested in the Sovereign but was transferred in centuries past to the
Lord Chancellor and from him personally to the Courts of Chancery and then to
those courts which, like the Supreme Court, exercise the jurisdiction of that
court. It is exercised to protect the person and property of subjects,
particularly children who are unable to look to their own interests. The court
has a wide power in relation to the welfare of infants. The dominant factor in
the exercise of the jurisdiction is always what is in the best interests of the
child in question. In a passage approved by Brennan J in Marion’s Case it was described by Lord Esher MR in R v Gyngall:
‘The court is placed in a position by reason of the
prerogative of the Crown to act as supreme parent of children, and must exercise
that jurisdiction in the manner in which a wise, affectionate, and careful
parent would act for the welfare of the child.’
The power is to be exercised
for the protection of those whose plight enlivens it. See also Fountain v
 The court's parens patriae
jurisdiction clearly extends to B, but it does not extend to her unborn child.
Her Honour also noted that there were offences in Queensland for unlawfully terminating a pregnancy.
Her Honour held:
I accept the considered opinions of the two psychiatrists and the
obstetrician who have examined B that the continuation of her pregnancy would
pose serious danger to her mental health and well-being, beyond the normal
dangers of pregnancy and childbirth. In their opinions the termination of her
pregnancy is the only way to avert that danger, and it would not be a
disproportionate response to that danger.
 It is
proposed to administer a drug misoprostol, which would induce labour, resulting
in the termination of the pregnancy by the expulsion of the foetus. Misoprostol
is a man-made form of the protein prostaglandin. It would be administered to B
orally in five doses over 12 hours, and the foetus would be expected to be
expelled in the next 12 hours. If it were not, the procedure would be repeated.
There is a less than 5% possibility that a third attempt would be required,
after a week. Common side effects of the drug include nausea, vomiting,
diarrhoea, hot flushes, abdominal pain and mild fever.
 The risks of using alternative procedures to terminate
B’s pregnancy are far higher. The procedure of dilatation of the cervix and
evacuation of the uterus in pregnancies beyond 14 weeks carries a higher risk of
damage to the cervix or the uterus. It is generally not undertaken in public
hospitals. The risks of a surgical procedure (a hysterotomy) are higher than
those associated with a delivery; the morbidity rate is high, particularly in
 B has told those who have been caring
for her and those who have examined her at the hospital that she wishes to have
her pregnancy terminated, and her parents both consent to that course. But in my
view this is one of those cases where B is incapable of giving informed consent
to the termination of her pregnancy and it is beyond her parents' powers to do
 B is only 12 years old. It seems unlikely
that a 12 year old child of average intelligence and maturity could fully
understand the significance of a termination of pregnancy, including the
immediate and long term risks to herself as the mother of the baby. But I am
satisfied that B is of less than average intelligence and maturity. Her father
has described her intellectual capacity and emotional maturity as being similar
to that of her nine year old sibling. Her obstetrician has likened her
intellectual functioning to that of a child half her chronological age. A
psychiatrist who has performed a mental status examination of her has said that
her intellect is in the very low normal range, possibly even lower. Another
psychiatrist who has examined her considers that she does have full
understanding of the nature of the proposed termination, but I reject that
opinion as against the weight of the evidence.
Her Honour then turned her mind to whether the approval of the abortion would be permitting an illegal act. Justice Wilson concluded that it was not. She held:
 The question of the lawfulness of conduct intended to terminate a
pregnancy goes beyond whether consent is given by or on behalf of the mother of
the unborn baby.
 The Court cannot authorise what
would otherwise be criminal conduct. Moreover, it would not be in B’s best
interests to subject her to an unlawful act, especially a criminal act.
Section 282 of the Criminal Code
“282 Surgical operations
A person is not criminally
responsible for performing in good faith and with reasonable care and skill a
surgical operation upon any person for the patient’s benefit, or upon an unborn
child for the preservation of the mother’s life, if the performance of the
operation is reasonable, having regard to the patient’s state at the time and to
all circumstances of the case.”
 A medical
practitioner who performs a surgical operation on a pregnant woman is not
criminally responsible for the death of the foetus if the operation is for the
preservation of the mother’s life: K v T; Re Bayliss. In B’s case there are sound medical reasons for not
performing a surgical procedure. Therefore, s 282 is not applicable here.
Section 286(1) of the Criminal Code provides –
of person who has care of child
(1) It is the duty of every person who has
care of a child under 16 years to —
(a) provide the necessaries of life for
the child; and
(b) take the precautions that are reasonable in all the
circumstances to avoid danger to the child’s life, health or safety; and
take the action that is reasonable in all the circumstances to remove the child
from any such danger;
and he or she is held to have caused any consequences
that result to the life and health of the child because of any omission to
perform that duty, whether the child is helpless or not.”
In my view, danger to a child’s health includes danger to
her mental health. A “person who has care of a child” is extensively, but not
exhaustively, defined in subsection (2), as follows –
“(2) In this
person who has care of a child includes a parent, foster parent,
step parent, guardian or other adult in charge of the child, whether or not the
person has lawful custody of the child.”
approach of Chesterman J in State of Queensland v Nolan, that definition is capable of extending to the hospital and
doctors who have undertaken the care of B.
the circumstances of this case, the administration of the drug misoprostol in
order to terminate B’s pregnancy would be reasonable to avoid danger to her
mental health, and so it would not be unlawful. It would be in B’s best
interests for termination of her pregnancy by that means to proceed.
Wednesday, 24 September 2008
Respecting Women and Leading Men,White Ribbon Foundation, Annual White Tie Dinner Four Seasons Hotel,Sydney
17 September 2008
Violence against women is difficult to talk about.
But for those who find it difficult, let us be clear – however uncomfortable it is to talk about, it is degrading and damaging to experience.
We often prefer silence to the confronting truth that nearly half a million Australian women have experienced violence from their partner or former partner.
Well, we can be silent no longer.
Because for too long, silence has been seen as tolerance.
This is just plain wrong.
And the time has well and truly come to turn this around.
As a nation, the time has well and truly come to have a national conversation – a public national conversation, not a private one – about how it could still be the case that in 2008 half a million Australian women could have experienced violence from their partner. And the objective is to turn this terrible statistic around.
Because each of these statistics is a human face.
And it is my gender – it is our gender – Australian men – that are responsible.
And so the question is: what are we going to do about it?
Analysis of Bureau of Statistics figures indicates that:
In any year, nearly half a million Australian women experience physical or sexual assault by a current or former partner.
One in three Australian women have experienced physical violence.
One in five Australian women have experienced sexual violence.
Less than one third of all physical and sexual violence is reported to police.
Approximately 90 per cent of women who experience sexual assault do not access crisis support, legal help or other support services such as telephone helplines.
Violence against women is the great silent crime of our time.It is the silence that makes it the most insidious.
Because it prefers the darkness. Because if it stays in the darkness, it cannot be discussed, debated – let alone dealt with.
To begin with, we need to change the attitudes of Australian men.
From birth, it must be drilled into the conscious and the subconscious of all men that there are no circumstances – no circumstances – in which violence against women is acceptable.
There are no circumstances in which the threat of violence against women is acceptable. There are no circumstances in which the thought of violence against women is acceptable.
That on violence against women, we have simple, clear policy in two words: zero tolerance.
That needs to be heard from every husband, every father, every partner.
From every celebrity. From every business leader.
From every football player.
From every brick layer.
From every bus driver.
From every factory worker.
From every office worker.
From every lecturer.
From every teacher.
From every student.
And from every politician of every political persuasion.
And it needs to be heard in every place.
In our parliaments.
In our work places.
At our barbeques.
Violence against women needs to move from the great silence to be part of a continuing national conversation. Why?
Because we need to change the way many men think.
We need to change the way some boys think.
And that cannot be done in silence.
Before coming to office, we said we would implement a national strategy against violence and sexual assault.
That strategy includes three things:
supporting women who have been the victims of violence;
ensuring that the legal system is effective in handling cases of violence against women; and
ending the cycle of violence for future generations.
To develop this strategy, the Government has brought together a group of experts and community leaders - the National Council to Reduce Violence Against Women, chaired by Libby Lloyd, one of the driving forces behind the Australian White Ribbon Foundation.
I was pleased to be able to join the Council in June this year at its first meeting.
And I’m pleased to see so many Council members here tonight.
I’m looking forward to seeing and supporting the National Plan that the Council will be presenting to Tanya Plibersek, the Minister for the Status of Women.
I understand that the Council has now received 370 submissions from organisations and individuals contributing ideas to be included in the Plan.
Once finalised, the plan will allow the Government to pursue the most effective, evidence-based approach that can help prevent violence and assist women who are still its victims. The truth is, we can’t reduce violence against women unless we change the attitudes of future generations.
On their own, all the laws in the world can’t stop violence against women unless there is a genuine change in the way that Australian men think.
If we are going to be effective in changing community attitudes we need a better understanding of those attitudes now, and how those attitudes change over time.
We need to understand how those views are formed, so that we can target our efforts towards the most effective measures that cultivate respect for women.
We know that men who tolerate violence towards women are more likely to perpetrate violence than those who do not.
For example, some believe that violence can be excused in certain circumstances; that women sometimes "ask for it" or "deserve" violence; or, that violence is a trivial matter.According to a Victorian study, almost one in four people believe domestic violence can be excused if the perpetrator genuinely regrets what they have done afterward, or if the violence results from a temporary loss of control.
It’s those attitudes that lie behind the continuing high incidence of violence against women.
We need to get to the bottom of those attitudes, and find the best way of changing them.
That’s why I am announcing tonight that the Australian Government will invest up to $2 million in research and analysis of Australian community attitudes towards violence against women.
This project will be carried out in partnership with VicHealth, the Social Research Centre and the Australian Institute of Criminology.
This research will help us to track changing community attitudes over time to give us the best evidence base for changing the attitudes of men.
This will help shape the practical recommendations of our National Plan for the future. To change attitudes, young men need to grow up with positive role models in their communities.
During the election, the Government committed to a comprehensive high school education program to help young men and young women to develop respectful relationships.
I am pleased to announce tonight that at the start of next year, we will be testing several programs to measure their effectiveness in both schools and youth organisations.
One model that the Government is testing is the Victorian Centre Against Sexual Assault’s Sexual Assault Prevention Program for Secondary Schools.
This is a program that engages the whole school community and helps all students and teachers to take responsibility for their part in preventing violence against women.
There are a number of very promising educative models operating across Australia that are building positive values and ethical relationships amongst young people.
These programs are a valuable contribution to the development of our National Plan.
The White Ribbon Foundation is also doing great work in providing positive community role models to challenge and change the attitudes of men and boys.
The Government has provided $1 million to extend the reach of White Ribbon Day educational activities into rural and regional communities, particularly in high schools.
One of the unique features of White Ribbon is how it has brought together such a diverse range of male leaders, from judges to football players to academics, media personalities, police and politicians.
Tonight’s White Ribbon Ambassador Award is a way of recognising the excellent work of those ambassadors.
There are many people here tonight whom I know have made extraordinary contributions to the White Ribbon campaign.
But there can be only one winner, and he is a very deserving one.
I am pleased tonight to announce that the 2008 Winner of the White Ribbon Ambassador Award is Mark Burgess, CEO Police Federation of Australia.
Mark has been a White Ribbon Ambassador since 2004.
His long career in the NSW Police gave him a deep understanding of the brutal reality of violence.
But it is in his role leading the Police Federation of Australia since 2000 that Mark has provided such strong leadership to promote awareness and understanding of violence against women.
Mark’s efforts are making a real difference among the 52,000 police officers who are on the front line in dealing with violence.
Mark has given enormously of his time and energies to this campaign, and he’s always willing to help out more.
So I am delighted to be able to present Mark with tonight’s Award and to support the excellent efforts of White Ribbon in making a difference to the lives of hundreds of thousands of Australian women.
The White Ribbon Foundation is an outstanding initiative – men and women coming together and saying that we cannot tolerate violence any more. That we will not tolerate violence any more.
That the time has come as a culture, as a country and as a nation to draw a line in the sand, once and for all.
 ABS, Personal Safety Survey 4906.0 2005
 Exact figure is 443,300 (or 6 per cent of the female population)
 Some women will experience both domestic violence and sexual assault
 Flood and Pease (2006). The factors influencing community attitudes in relation to violence against women: a critical review of the literature – Paper Three of the Violence Against Women Community Attitudes Project, VicHealth, Melbourne.
 Victorian Department of Health (2006). Two steps forward, one step back – Community attitudes to violence against women: Progress and challenges in creating safe and healthy environments for Victorian women.
 The Social Research Centre is a Victorian based research company that specialises in social and health policies.
Sunday, 21 September 2008
There was litigation over noise from Luna Park in Sydney. Officers of the company used some of the documents in the proceedings to put to a State Government Minister, which resulting in legislation curing the noise complaints of residents.
Not be outdone, the residents groups proceeded against the company officers for contempt of court. The groups were successful, and the officers appealed, finally ending up in the High Court.
The officers were unsuccessful. Their conduct was held to be contemptuous.
There were three judgments: Chief Justice Gleeson (who agreed with the joint judgment but added a few comments of his own), Justice Kirby ( who spoke at length about how he sought for the officers' counsel to address on whether a submission to an MP may be privileged, but counsel refused) and the joint judgment of Justices Hayne, Heydon and Crennan.
The joint judgment
The key points were:
- Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. (citations removed)
- It is common to speak of the relevant obligation as flowing from an "implied undertaking".
- The point of insisting on an express undertaking, commonly employed in relation to documents which it is particularly desired to keep secret, is to bring explicitly home to the minds of those giving it how important it is that the documents only be used for the purpose of proceedings. It does not follow that the obligation in question does not exist in more routine cases without the need for an express undertaking.
- The primary person bound by the relevant obligation is the litigant who receives documents or information from the other side pursuant to litigious processes. The implied undertaking also binds others to whom documents and information are given. For example, expert witnesses, who are not parties, commonly receive such documents and information and are bound by the obligation. It is likely that, in the future, documents and information will be provided to persons funding litigation, who will likewise be bound by the obligation. In Harman v Secretary of State for the Home Department the person in contempt was the party's solicitor. In Hamersley Iron Pty Ltd v Lovell it was the party's industrial advocate. In Watkins v A J Wright (Electrical) Ltd it was a person who was not qualified as a solicitor in the forum, but engaged in day-to-day conduct of the litigation. Laddie J thought "it would be just as much a contempt of court for, say, a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so." In both England and Australia, these instances have been broadened into a wider and coherent principle. Thus Hobhouse J said: "[A]ny person who knowingly ... does acts which are inconsistent with the undertaking is himself in contempt and liable to sanctions".
Chief Justice Gleeson
- Compulsory pre-trial exchange or disclosure of materials, such as witness statements and experts' reports, is now extensive. The rationale sometimes given for the obligation concerning discovered documents (it is the condition upon which a court compels disclosure of private documents) may not always be applicable to witness statements or experts' reports. There may be little or nothing about them that is private. This, in turn, is connected with the scope of the potential liability of strangers to the litigation into whose hands such materials may come.
Of course, I recognise that there are arguments supporting the retention of the "implied undertaking" concept, or at least of a substantive prohibition on the release of documents such as those in question in this appeal. For example:
. Materials prepared for use in court may sometimes be provided under legal compulsion and are deserving of protection on that basis;
. Such materials may occasionally disclose private, confidential or secret information in respect of which the disclosing party might wish to seek protection at the trial from the court concerned;
. The material is not, as such, evidence in court until formally received, and some such material might be excluded by the court as irrelevant, objectionable, unfairly prejudicial or otherwise inadmissible; and
. Judicial supervision of the admission of evidence in a trial affords protection not only to those providing the evidence and to the parties to the proceedings, but also to third parties and the public, whose interests might be affected adversely by the privileged publication, and consequent republication, of the evidence.
Support for re-expression: As against these considerations, there are many that favour the re-expression of the governing common law in a fundamental way:
. The growing willingness of courts, in Australia and elsewhere, to drop the fiction of "implied undertakings" suggests that the process of re-expression has already begun;
. The rule to which that fiction gives rise is burdensome on free expression in contemporary Australian society, and is arguably too absolute;
. The arguable need to limit the disclosure of documents prepared for use in court may not justify the strict prohibitions hitherto enforced, which may reflect outdated attitudes to the disclosure of information in official hands;
. In the circumstances of the present case, a relevantly total embargo on the use of the subject documents was arguably inappropriate or disproportionate given that the documents were prepared by the residents themselves; were apparently drafted by their lawyers, who had inferentially provided full and competent legal advice; and were repeatedly stated to encapsulate the evidence to be given by the residents in the trial; and
. The rapid expansion in recent decades of obligations to prepare and file evidence and argument in written form has significantly altered the environment in which the issue of contempt of court, and other issues, arise for decision in litigation. Arguably, a more nuanced rule to govern the use of such written materials needs to be fashioned by this Court if the law is to be adapted to this shift.
Conclusion: confinement of appeal: I do not endeavour to resolve these considerations and arguments. I mention some of them to indicate why I regard it as seriously unsatisfactory to be obliged to consider, and decide, this appeal on the basis of decisional law which, virtually without exception, has been developed in the context of a fiction of "implied undertakings".
Saturday, 20 September 2008
Thursday, 18 September 2008
Comment: The proposed amendments have not been placed on the Parliament House website.
Sunday, 14 September 2008
I had chased up Kerry Shine's office- twice- as to whether the proposed changes would cover men offering sperm to their female friends, but my calls were not returned and I was none the wiser.
Last week a friend told me that he was considering donating sperm via a website: http://www.free-sperm-donations.com/ . He ultimately had second thoughts.
At the time that Kerry Shine made the announcement, he considered that part of the reason for making the changes was so that sperm donors to IVF women would not be fathers and therefore would not be required to pay child support. He proposed that the laws be retrospective to 1988- when the Status of Children Act was enacted!
Because of my friend's situation, I looked over the weekend, and found that tucked in at the back of the Guardianship and Administration and Other Acts Amendment Bill were these proposed changes.
So what do they mean? If enacted, the Bill would make ensure that if a woman other than a married woman were to have a child by a sperm donor- if she were to go through IVF, then the donor will NOT be the father and will never have the rights of fatherhood unless and until he marries her. It doesn't matter if the woman and the man agree that he is to have those rights- that agreement is irrelevant.
However, if the man donates sperm to the mother other than through IVF, then it is possible that he might be considered to be the father, in which case there would be certain rights under the Family Law Act, including the presumption of equal parental responsibility, and the obligation to pay child support.
Although there are two decisions of the Family Court which in part dealt with Victorian legislation which would suggest that the known sperm donor would not be a father or parent under the Family Law Act and under child support legislation, there is no guarantee that that court will follow the same approach with the Queensland legislation, especially when the Attorney expressly stated that part of the purpose of the legislation was so that donors would not have to pay child support. If the legislation that he is proposing does not include known donations other than via IVF, then this of itself raises the possibility that known donors other than through IVF might be treated as fathers and liable to pay child support (and seek to make decisions about the child and spend time with the child, maybe even equal time, relying on the Family Law Act).
Here is the curiously drawn proposed section 18AA:
18AA Implantation procedure—Presumption as to status
where donor semen
‘(1) A reference in this section to a fertilisation procedure is
reference to the procedure of implanting in the womb of a
embryo derived from an ovum produced by her and
fertilised outside her body
by semen produced by a man who
is not her husband.
‘(2) If a woman has
undergone a fertilisation procedure as a result
of which she has become
pregnant, the man who produced the
semen has no
rights or liabilities in relation to any child born
result of the pregnancy happening because of the use of
the semen unless, at any time, he becomes the husband of
‘(3) The rights and liabilities of a man who
produced the semen
and becomes the husband of the mother of a child born as
result of a pregnancy mentioned in subsection (2) are the
liabilities of a father of a child but, in the absence of
agreement to the
contrary, are restricted to rights and
liabilities that arise after the man
becomes the husband of the
What is clear from this section is that a sperm donor can never be assumed to be a father in this context, unless he marries the mother. What is more, any agreement that he might enter into with the mother (or for that matter her partner) is not legally binding unless he marries the mother.
So much for those gay fathers and lesbian mothers and co-mothers who want to enter into agreements- tough luck unless mum and dad are married!
As is usual with this area of law- get good legal advice first!
Then there is the curious section 18AB:
18AB Implantation procedure—Presumption as to status
where donor ovum
‘(1) A reference in this section to a fertilisation procedure is
reference to the procedure of implanting in the womb of a
embryo derived from an ovum produced by another
woman and fertilised by semen
produced by a man who is not
the husband of the first mentioned
‘(2) If a woman has undergone a fertilisation procedure as a
of which she has become pregnant—
(a) the woman who has undergone
procedure is presumed, for all purposes, to have
pregnant as a result of the fertilisation of an ovum
her and to be the mother of any child born
as a result of the pregnancy;
(b) the woman who produced the ovum from which the
embryo used in the
procedure was derived is presumed,
for all purposes, not to be the mother of
any child born
as a result of the pregnancy.
‘(3) A presumption of law
that arises by virtue of subsection (2) is
‘(4) Also, the
man who produced the semen has no rights or
liabilities in relation to any
child born as a result of the
pregnancy happening because of the use of the
at any time, he becomes the husband of the child’s
‘(5) The rights and liabilities of a man who produced the
and becomes the husband of the mother of a child born as a
a pregnancy mentioned in subsection (2) are the
rights and liabilities of a
father of a child but, in the absence of
agreement to the contrary, are
restricted to rights and
liabilities that arise after the man becomes the
husband of the
Again the same scenario applies- although in this case the mother is carrying sperm of the father (again only via an IVF type procedure is good enough for this legislation) and the egg of another woman. The woman giving birth would be the mother. The other woman would not, and the man would have no rights (and no obligation to pay child support) unless he married the mother.
What is curious about this section is what it does not say. Currently if a woman (in this case the mother) were to do this, then she might fall foul of the Surrogate Parenthood Act 1988. I won't go into the technicalities here but potentially under that Act, both women and the man might be committing an offence. The new section would make it clear that that behaviour (as described precisely in section 18AB) is not that of a surrogate and therefore an offence is not being committed.
The explanatory notes to the relevant part of the Bill state:
The objectives of this Bill are to –...
•• amend the Status of Children
Act 1978 to correct an anomaly in
provisions relating to in vitro
fertilisation procedures for
unmarried women and married women who underwent
procedures without the consent of their husband.
Amendments to Status of Children Act 1978
The purpose of the Status
of Children Act 1978 (SCA) is to protect children
by conferring parental
status on adults to enable them to exercise the
powers and responsibilities
of parents under statute and common law to
care for their children.
SCA creates parentage presumptions for the married mother of a child
a result of artificial insemination or a procedure where an embryo
outside her body is implanted in her womb (in vitro fertilisation).
also creates presumptions of law for the mother’s husband or
male de facto
partner. The donor of semen or ovum is presumed to not have
semen or ovum and not to be the father or mother of the child
born as the
result of such a procedure.
However, where an in vitro fertilisation
procedure is performed on an
unmarried woman (a single woman or woman in a
same sex relationship)
or a married woman without the consent of her husband,
the donor of
semen or ovum is not excluded from any responsibilities or
relation to a child born as the result of such a procedure.
unintended anomaly creates uncertainty for the status of children born
result of such procedures and the rights and liabilities of donors
Guardianship and Administration and Other Acts Amendment Bill
semen or ovum. The Bill addresses this anomaly by clarifying
parentage status of children and the parentage status and rights
liabilities of donors.
The Bill does not allow for the NSW situation of recognising the father as the father if he desires it.
There are two issues which may now be up in the air:
1. The national de facto reforms
Despite the coalition senators on the Legal and Constitutional Affairs Committee recommending also that the changes come through quickly, WA has always gone by the beat of a different drum. The Commonwealth has already rejected the narrow referral of power from WA, and given that Colin Barnett has said that he will not be bullied by the Commonwealth about closing any WA school, it wouldn't be surprising if WA decides to take a different approach to the de facto law reforms, and stymie much needed national reform.
Despite former Attorney Phillip Ruddock calling for uniform surrogacy laws, and despite Labor getting surrogacy through WA's Upper House (and then lapsing because of the election) watch this space to see if WA does anything about surrogacy now, and if so, what it might be.
Friday, 12 September 2008
The New York Times reports...a gay Jewish couple marry in Massachusetts , have a child by a surrogate, and obtain an adoption order in New York so that both are recognised as parents.
Then they split up...
One of them allegedly decides to take off with the child and after reading the Hague convention, flees to Israel. While there, he apparently receives a phone call on his mobile from a cop in New York, tells the cop openly that he is in Israel with the boy, that he read the Hague convention and that there was nothing the cop could do.
The other dad then gets an order in New York. The Israeli court says that the Hague convention does not apply, and before you know it the boy is back in New York and the fleeing father has been charged over the whole affair.
The Hague Convention is formally called the Hague Convention on the Civil Aspects of International Child Abduction. It allows for the speedy return of children who have been wrongfully taken (or kept) from one convention country to another convention country. Both the USA and Israel are convention countries. Australia is also a convention country.
Thursday, 11 September 2008
The committee recommends that the Bill be passed with only minor changes. It said:
This Bill gives effect to a decision at the November 2002 meeting of the
Standing Committee of Attorneys-General and is supported by many of the key
stakeholders. The Bill also implements important aspects of the HREOC Same-Sex:
Same Entitlements report. In this context, the committee strongly supports the
inclusion of same-sex couples in the definition of 'de facto relationship' and
considers that the removal of discrimination on the basis of sexuality in the
family law system is long overdue. The committee commends HREOC for its
excellent work in this area.
The committee considers that it is
important to recognise the reality that increasing numbers of Australians are
living in de facto relationships, and that there is a need to streamline legal
processes for such couples if their relationship breaks down. It makes sense to
provide a consistent national scheme to enable de facto couples to access
the federal family law system for all proceedings, instead of the current
process of federal court access for child-related matters and state and
territory courts for financial matters. In turn, the committee agrees that this
will reduce the costs and inconvenience for de facto couples, as well as reduce
the administrative burden on the federal and state court systems. The committee
considers that this is particularly important where there are children involved
in the breakdown of a de facto relationship. The committee accepts that it is
not the objective of this Bill to undermine the institution of marriage in any
For the above reasons, the committee supports the Bill and believes it
should be passed as a matter of priority.
The recommendations of the committee are:
- The committee recommends that the definition of 'child of de facto relationship' in proposed section 90RB of the Bill and the parenting presumptions in section 60H of the Family Law Act 1975 be amended to allow children of same-sex relationships to be recognised as a child of the relationship for the purposes of the entire Family Law Act 1975. In making this recommendation, the committee recognises that the interests of the child must be of paramount consideration.
- Without derogating from the independent and privileged status of marriage, the committee recommends that the Federal Government undertake a review of all federal legislation containing definitions of:
'de facto' and 'couple' relationship and 'de facto partner' and all related definitions; and
'child' and 'parent', including parenting presumptions, and all related definitions;
with a view to ensuring consistent concepts and terminology are used wherever appropriate.
- The committee recommends that the Federal Government renumber the Family Law Act 1975 in subsequent legislation. [Hooray- now it will no longer be like the Tax Act and can possibly be read!]
- The committee recommends that the transitional provisions in the Bill be amended to enable de facto couples to 'opt in' to the new regime by mutual agreement, subject to appropriate safeguards, where their relationship breaks down before commencement and their property or maintenance matters have not been finalised before commencement.
- Subject to the preceding recommendations, the committee recommends that the Bill be passed.
A full copy of the report of the committee can be found here- PDF files.
Extracts from the Report
(T)he primary purpose of the Bill is to enable the federal family courts to deal with both financial and child-related matters arising for separated de facto couples in the one proceeding. As a result, the Bill aims to avoid the unnecessary additional costs and inconvenience on de facto couples, as well as reduce the administrative burden on the federal and state court systems.
3.3 In general, many submissions and witnesses were strongly supportive of the Bill. A key reason for this support was because it would streamline processes for both same-sex and opposite-sex de facto couples, and allow them access to the specialised forum of the Family Court (including its mediation procedures) to resolve property and maintenance disputes at the same time as child-related proceedings. Of those who supported the Bill, many raised drafting issues, but nevertheless urged the government to proceed with the legislation as a 'matter of priority'. Those who objected to the Bill outright generally raised concerns about the Bill's impact on the status of marriage and/or the perceived extension of marriage rights to de facto couples.
3.4 The Family Law Section of the Law Council of Australia (Law Council) described itself as 'a vigorous supporter of the objective that family law should apply in a consistent and uniform way to married and de facto relationships nationally'. The Law Council argued that this 'much-needed and socially advantageous legislation' is:
...long overdue given the high and ever-increasing percentage of Australians who live — regardless of gender — in marriage-like relationships in preference to formal marriage.
3.5 Mr Ian Kennedy, Chair of the Family Law Section of the Law Council summarised some of the problems with the current system:
In more recent years, of course, [de facto] couples have been able to have issues relating to their children determined under the Family Law Act. The paradox of that is that it has compounded the impact on them as the Family Law Courts have not had the power to deal with the financial consequences of relationship breakdown. So non-married couples have had to have their issues resolved in two different jurisdictions—the federal jurisdiction for their children and the state jurisdiction for financial issues—at very significant additional cost and with stress on the families.
3.6 Similarly, Women's Legal Services Australia (WLSA) were strongly supportive of the Bill. Ms Heidi Yates of the WLSA explained that it wants to ensure that the justice system produces the most just and equitable outcome for women and their children:
At present, the Family Court, as a specialist court, with particular ability to look at the future needs of the primary caregiver and their ability to care for the children, provides the most just and equitable outcome and therefore it would be most appropriate if both de facto and married couples could use that federal system. It also promotes consistency, simplicity of advice and I think amongst the community members a more consistent understanding of what their rights and obligations are.
3.7 Another reason WLSA supported the Bill was from a children's rights perspective. WLSA believed that, under the current system, the limited coverage and inconsistent features of state and territory schemes means that children of de facto couples currently receive less protection compared to children of married couples. Ms Heidi Yates of WLSA explained:
It is essential that when distributing property the court consider the future needs of the parties, specifically the resources required by the primary caregiver to housing care for the children after separation...only some of the existing state and territory de facto schemes allow for consideration of future needs.
3.8 Ms Yates continued:
Further, when it comes to spousal maintenance, the Family Law Act requires a party to financially maintain their ex-partner if that partner is unable to support themselves because they are caring for the children. We also submit that spousal maintenance orders can support a child's right to an adequate standard of living upon separation by providing the primary caregiver with additional income. At present a primary caregiver cannot access maintenance payments in some jurisdictions and in others can only receive such payments until the children become 12 years of age.
3.9 The Australian Institute of Family Studies (AIFS) also supported the Bill. It outlined some of the research it had undertaken, which shows that:
cohabitation has become an increasingly common family form (the 2006 census data shows that 15% of all persons living with a partner were 'cohabiting'); 
the number of children being born into cohabiting relationships is also increasing;
children living with cohabiting parents appear to be less well-off than those living with married parents; and
children living with cohabiting parents appear to be more likely to experience parental separation.
3.10 In response to further questioning on the duration of marriages compared to cohabiting relationships, the AIFS informed the committee that:
The probability of a marriage ending in divorce appears to have been increasing...33% of all marriages that began in 2000-2002 could be expected to end in divorce, compared with 28% of all marriages that began in 1985‑1987. However, the estimated expected duration of marriages that end in divorce has increased...[A]mong men who obtained a divorce from their first marriage, the average expected duration of their marriage increased from 11 years for those who married in 1985-1987 to 14 years for those who married 2000-2002.
3.11 In contrast, the AIFS informed the committee that the median duration of a cohabiting relationship for those who separated was around 2 years (excluding first cohabitation following marriage).
3.12 The committee notes that data from the Australian Bureau of Statistics also shows that, for those people who got married in 1985–1987 and 2000–2002, the expected average duration of their total married life remained unchanged at around 32 years.
3.13 Other information from the AIFS showed that:
'cohabiting relationships are far more likely to dissolve than marriages'; and
'regardless of the period in which cohabitation or marriage began, the likelihood of a cohabiting relationship ending in separation within five years was at least three times the likelihood of a marriage ending in divorce within five years (25–38% vs 7–9%).'
3.14 Based on its research, the AIFS supported the Bill, concluding that:
Given the increasing prevalence of cohabiting relationships, and the increasing number of children cared for in such relationships, the removal of legal distinctions between the post-separation financial regulation of cohabiting and married relationships appears justified.
3.15 As a representative of the AIFS told the committee:
The primary rationale for the institute's support is that the scheme has the potential to alleviate some of the family stress associated with relationship breakdown.
3.16 However, some submissions opposed to the Bill argued that same-sex and de facto couples can use the current state systems and/or contracts and 'civil law' to protect their interests and to access property and maintenance settlements. For example, FamilyVoice Australia argued that the Bill was 'redundant' and that:
It is open to the parties in a de facto relationship, and to the parties in a same-sex relationship, to enter into civil contracts to protect their individual interests in property. Any such contracts should be governed by State and territory law. There is no need for them to be included within the purview of the Family Law Act 1975.
3.17 However, as outlined above, the committee heard a great deal of evidence pointing out the problems with the current system, which included duplication, inconsistency, cost and inconvenience.
3.25 The AIFS told the committee that it had not done any research on any differences between same-sex and opposite-sex de facto relationships, or development outcomes for children in those relationships. However, the NSW Gay and Lesbian Rights Lobby pointed to a range of research which 'demonstrated that children raised by lesbians and gay men are just as happy and well adjusted as children raised in other familial structures'.
3.34 Professor Parkinson similarly believed that the Bill should be withdrawn until further research and consultation has been conducted as to:
Whether the proposed laws discriminate against people in heterosexual de facto relationships who have chosen not to marry by depriving them of the fruits of that choice.
3.35 Professor Parkinson explained further:
...we have simply not asked the Australian people whether they want marriage to be treated the same as cohabitation, and we have not asked heterosexual de factos whether they want that. Most of the sociological evidence is against it. Most of the sociological evidence I have read suggests that there are quite significant differences between people who have chosen to marry or intend to marry and those who have not. What we are doing in this bill is wiping out all those differences and treating everybody as 'married'.
3.36 In contrast, the Law Society of New South Wales (NSW Law Society) submitted that the Bill was consistent with community attitudes:
Overall, the reform proposed by the de facto property settlement provisions is consistent with the changes in attitudes within the community reflected in the viewpoint that the law should treat the economic consequences of the breakdown of de facto opposite sex relationships and same sex relationships in the same way as the economic consequences of the breakdown of marital relationships.
3.37 In this context, at least in terms of same-sex couples, it is noted that research and consultation conducted by the NSW Law Reform Commission indicated that members of the gay and lesbian community believed that same-sex relationships should be treated the same as marriages.
3.69 Many submissions were particularly supportive of the inclusion of same-sex couples in the definition of 'de facto relationship' on the basis that it would remove discrimination against same-sex couples in the area of family law, and therefore implement aspects of the HREOC same-sex inquiry.
3.70 Mr Graeme Innes stated that HREOC supported the definition of 'de facto relationship' contained in the Bill 'because it brings equality to same-sex and opposite-sex couples'. As noted earlier, in HREOC's view, the definition of de facto relationship in the Bill is essentially the same as the model definition recommended in its Same-Sex: Same Entitlements report.
3.71 Similarly, the Law Council commented that it was pleased that the rights of unmarried couples (including same-sex couples):
...will now be able to be determined in specialist courts on a nationally consistent basis throughout the country rather than by a quirk of geography (dependent upon where they happen to live or where a disputed property is located) or as a consequence of gender.
3.72 A standard submission provided to the committee received from 41 individuals stated:
Allowing same-sex couples to have access to the Family Court will minimise the cost and trauma involved with a relationship breakdown, whilst increasing privacy of those undertaking proceedings. I strong[ly] urge the Senate to support this inclusive reform for all defacto couples, including same sex couples.
3.73 Lesbian and Gay Solidarity (LGS) Melbourne supported the Bill, describing it as a 'step forward', but expressed regret that same-sex couples were still not being treated as equals with married couples:
...same-sex couples will still have to prove they are in a genuine de facto relationship by conforming to a set of standards listed in this Bill...It is still not equality with married couples despite a same‑sex relationship being a loving partnership. Surely, the government needs to revise its objection to a legal document (officially recorded and similar to a marriage certificate) which unites a same-sex couple if they so wish.
3.74 In contrast, the Shared Parenting Council of Australia claimed that the Bill was 'a clear attempt to advance the concept and realisation of same-sex marriage (de facto marriage) by legislative stealth'.
Recognition of relationship registers
3.75 Proposed paragraph 2(g) of the definition of de facto relationship provides that one of the circumstances that a court may consider in determining whether or not a de facto relationship exists is 'whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship'.
3.76 Several submissions suggested that registered relationships should be treated as a completely separate category to de facto relationships, or at the very least, a registered relationship should be conclusive proof of a de facto relationship.
3.77 For example, Mr Rodney Croome of the Tasmanian Gay and Lesbian Rights Group expressed the view that:
...a registered relationship is neither a de facto relationship with a certificate nor marriage by another name. A registered relationship is a new kind of legally recognised relationship...when couples choose to enter into these formalised relationships, they are choosing to no longer to be considered a de facto couple. That would seem to be a mischaracterisation of their relationship.
3.78 WLSA also suggested that the Bill should be amended to recognise the 'unique status of registered relationships'. WLSA argued that:
...it is inappropriate that relationships which have been registered under a prescribed law of a State or Territory be subsumed back into the category of 'de-facto' relationships under federal law...[R]egistered relationships should be recognised as an independent, third category of relationship under federal law, along with marriage and de facto relationships.
3.79 Alternatively, WLSA advocated that, at the very least, if a de facto relationship is registered under a state or territory scheme, this should be conclusive proof of a de facto relationship:
This approach would promote certainty and reduce the court resources and legal costs that might otherwise be required to determine the legal status of the registered relationship.
3.80 As noted earlier, Mr Wayne Morgan suggested that the ideal approach would be for the Commonwealth to insert an 'umbrella' term (such as 'couple relationship'), into the Acts Interpretation Act 1901, which would treat a 'registered relationship' as a separate category to a marriage and a de facto relationship. As a fallback position, Mr Wayne Morgan again considered that registration of a relationship under a state or territory law should be conclusive proof of the existence of a de facto relationship under Commonwealth law.
3.81 In response to suggestions that a registered relationship should be conclusive evidence of a de facto relationship, a representative of the Department informed the committee that its legal advice indicated that the Commonwealth does not have the power to make a registered relationship determinative of a de facto relationship due to the nature of the state referring legislation:
...our advice is that the breadth of relationships that could be registered under state law means that they may be relationships that would not otherwise be regarded as a de facto relationship, and therefore our power does not extend that far.
3.82 The representative further explained that:
What the Commonwealth has done, in its view, is to extend to registered relationships a recognition, to the extent that it can, firstly, by making that a factor...[T]here are effectively two hurdles for someone to get through before they get an order from the court. One is that they have a de facto relationship. The second is that they have either a de facto of two years, there are children of the marriage or unjust hardship, or there is a registered relationship. That is conclusive. Once you have got through the 'de facto definition', then a registered relationship is enough.
3.83 In relation to proposed paragraph 2(g), LGS went further, asserting that the Federal Government should provide its own genuine same-sex relationship legal register which is the equivalent of the marriage licence, and that:
As with hetero (different sex) couples who prefer not to marry but live together in a de facto relationship, there would be plenty of same-sex couples who would prefer to do the same. Just as many same-sex couples, though, would be committed to a licensed federal partnership. It is therefore unfair of the federal government to refuse them equality with a woman and man's married partnership.
3.84 In contrast, FamilyVoice Australia objected to proposed paragraph 2(g) due to concerns about its impact on the status of marriage (as discussed elsewhere in this chapter).
3.101 Section 60H makes presumptions about who are the 'parents' of a child born as a result of assisted reproductive technology (ART) for the purposes of the Family Law Act. Section 60H effectively recognises a birth mother and the male partner of a birth mother as parents. However, a female partner of the birth mother (lesbian co‑mother) and a male partner of a birth father (a gay co-father) are not considered to be parents. As HREOC pointed out in its Same-Sex: Same Entitlements report, a child born to a same-sex couple will often have only one legal parent for the purposes of the Family Law Act.
3.105 Professor Jenni Millbank submitted that the Bill's approach to section 60H was its 'major failing'. Professor Millbank expressed the view that:
It makes no sense to acknowledge the existence of a parent-child relationship for the purpose of property division but not for the purpose of child support or child maintenance, parental responsibility, or for decisions about time with children.
3.106 Professor Millbank explained further during the committee's hearing:
We have a quite crazy position where children are children for the purposes of assessing contributions—homemaker and care-giving contributions—through the course of a relationship. Children are children for the purposes of being assessed for future needs provision if one parent is the primary caregiver for the children after separation, but children are not children for the purposes of being children. They are not children for the purposes of parental responsibility or for the presumptions or guidelines in the division of time with children when parents separate. For lesbian couples who have children through ART, that is a completely unnecessary burden...
3.107 Similarly, Mr Kassisieh of the NSW Gay & Lesbian Rights Lobby explained to the committee:
So the mother is a mother for the purposes of who gets the house, who gets the car and the future needs of the children. She is not a mother to her children for the purposes of where the children will live and who the children will spend time with.
3.108 Associate Professor Miranda Stewart similarly agreed that the approach to section 60H in this Bill is 'illogical':
Why recognise for property division purposes but not for parental responsibility purposes that this couple is raising a child? It is a gap, I think, in the bill, and I would submit that...it would be appropriate to extend that parenting presumption.
3.109 She further observed that:
The bulk of children of same-sex relationships at the moment, I think the statistics make clear, are born to and raised by lesbian couples. In most cases, obviously, there is donor insemination generating these new families. An appropriate and easy way to recognise all of those families would be to amend section 60H of the Family Law Act...
3.110 HREOC had other concerns about the reliance of subsection 90RB(3) on section 60H of the Family Law Act. HREOC pointed out that the application of section 60H 'is uncertain due to judicial interpretation' – for example, different cases have found both that a donor father is not a parent and that a donor father is to be considered a parent. HREOC also pointed out that extension of section 60H to same-sex couples does not ensure parental status for gay fathers whose child is born through a surrogacy arrangement.
3.111 Similarly, Professor Millbank suggested section 60H 'has been crying out for amendment for the past 15 years' as it is 'confusing, inconsistent with state law, uncertain in operation and discriminatory'.
3.112 Indeed, the committee heard that section 60H of the Family Law Act and the approach in this Bill is inconsistent with the majority of states and territories. The committee was told that in WA, the Northern Territory, the ACT, New South Wales and under proposed Victorian legislation, a female de facto partner of the birth mother is also accorded parental status.
3.113 Some witnesses noted that it was possible for certain gay and lesbian co‑parents to go 'through a complicated legal process to be recognised as parents under the law'. That is, they can go to state courts, or apply to the Family Court in its cross-vesting jurisdiction to apply territory law, for recognition as a parent. They can then use section 69S of the Family Law Act, which provides that, where an order has been made that someone is a parent in another court, this order is conclusively binding on the Family Court. However, it was argued that this is a costly and cumbersome legal process and not in the best interests of children.
3.114 For example, Professor Millbank explained that:
For intact lesbian couples, it is incredibly important that both parents have parental responsibility for their children. In all states and territories, if they are having kids through donor insemination at home or through a clinic or IVF, there is no legal father and there is one legal mother—the one who had the child. The other mother in that household does not have parental responsibility over her child, despite the fact that she is a functional and intended parent of that child and is caring for that child. That is terribly difficult for families while they are intact. Many lesbian mothers now go to the Family Court to seek orders by consent to get themselves parental responsibility. It is not as though the law has made that impossible; it has just made it very hard, expensive and available only to the people who have the gumption to pursue it.
3.115 Professor Millbank further explained that the current section 60H causes problems in related provisions in the Family Law Act and related legislation. For example, several witnesses pointed out that the definition of parent in the Child Support (Assessment) Act 1989 (Cth) relies on the definitions in the Family Law Act. This causes further disadvantages to same‑sex parents, which would not be removed by this Bill.
3.116 Most submissions and witnesses suggested that a preferable approach would be to amend section 60H directly so that it is expressed in gender neutral language. As Ms Heidi Yates of WLSA told the committee: 'no child should suffer discrimination because of the gender of the parents'.
3.117 The Victorian Gay and Lesbian Rights Lobby supported the 'limited extension of section 60H' in the Bill, but urged that its application be extended 'to all circumstances to ensure that children of same-sex couples are protected without limitation like every other child in Australian families'.
3.118 Professor Millbank suggested that section 60H also needs to be amended to 'make it clear how 60H fits into the Family Law Act as a whole'. In addition to amending section 60H, Professor Millbank considered that the definition of 'parent' in section 4 of the Family Law Act should also be amended.
3.119 However, the Human Rights Commissioner, Mr Graeme Innes, pointed out that, even if section 60H were amended to use gender neutral language, 'there will be no protection of a child born through a surrogacy agreement to gay fathers'. Currently, a gay co-father of a child born following an ART procedure is not considered to be a parent under Part VII of the Family Law Act. Mr Innes suggested that an amendment of section 60H would need to be accompanied by 'uniform reform of state surrogacy laws'. In the absence of such reform, HREOC's preferred approach was the 'more inclusive definition' of child as a 'product of a relationship' contained in the Same-Sex Superannuation Bill.
3.120 In contrast, Professor Millbank felt that the definition of child as a 'product of a relationship' in the Same-Sex Superannuation Bill was a mistake and should not be used elsewhere. Professor Millbank was concerned that there is a range of different definitions of child across federal legislation. She suggested a 'quick and dirty' audit of federal legislation with a view to developing a 'uniform, simple definition', that is:
...a simple conceptual basis of the parent-child relationship that is put into either the Family Law Act or the Acts Interpretation Act and then mirrored out to all the other acts. So every other act could say that 'parent' or 'child' means the definition in the Family Law Act or the Acts Interpretation Act. I think it is time we did that. I do not think it is that hard a thing to do. That is what I would like to see come out of some of this process, rather than this kind of ad hoc approach of: 'Oops, we’ve got this problem. We've got some people who are left out. Let's toss in another thing.'
3.121 Professor Millbank agreed that there would still then need to be reform of surrogacy laws. She acknowledged that:
HREOC and I have disagreed a little about this. They favour the 'product of the relationship' category because they are concerned about the coverage of gay men who have children through surrogacy...I do not want to exclude gay men who have children through surrogacy, but there are issues with how they have children. The issues around consent and so on are the very same issues that heterosexual families who have children through surrogacy have, and that should be reformed through the reform of surrogacy law... [T]he issues are very similar and should be dealt with across the board rather than through ad hoc messing with the existing presumptions.
3.122 Similarly, Mr Kassisieh of the NSW Gay & Lesbian Rights Lobby also suggested that 'where gay men have children there needs to be other types of reform, particularly in surrogacy'. Ms Kassisieh and Ms Gray noted that surrogacy reform was needed in the context of heterosexual couples as well, and that this issue was perhaps outside the scope of this Bill.
3.132 Both the Law Council and the NSW Law Society called for the Family Law Act to be renumbered. The Law Council submitted that its provisions should be rearranged in a 'more logical and accessible form':
As a result of numerous amendments over 30 years the structure and numbering in the Act have become unwieldy and unnecessarily complicated and increasingly difficult to navigate for experienced practitioners let alone the general public.
3.133 The NSW Law Society similarly suggested that the general structure of the Bill is not 'user friendly' and that it was a 'missed opportunity' to renumber the Family Law Act 'to avoid having numbers which have triple letters after them'.
3.135 The transitional provisions in Division 2 of Part 2 of Schedule 1 provide that the new Act will not apply to de facto relationships which broke down before commencement. Ms Judy Harrison of the Australian National University's College of Law described these provisions as 'very harsh'. Both Ms Harrison and WLSA suggested that de facto couples should be able to 'opt in' to the new Act by mutual agreement where their relationship breaks down before commencement and their maintenance or property matters have not been finalised before commencement.
3.136 The Department responded to this suggestion as follows:
The application of the Bill to relationships that have already broken down provides a clear test relating to the relationships to which the new regime will apply. It also reflects the same approach taken by each State and Territory, with the exception of the Northern Territory, when its property settlement regime was introduced. The suggestion that couples should be able to 'opt in' to the new regime by mutual agreement, particularly where they 'opt in' for an adjudicated determination of issues between them, would need to be accompanied by safeguards, to ensure informed choice and also to protect those in an unequal bargaining position.
3.137 The committee notes that WLSA and Ms Harrison did suggest a safeguard requirement that an eligible party certify in writing that they have given informed consent after receiving independent legal advice. WLSA and Ms Harrison also state that no time limit would be necessary on this 'opt in' arrangement, as a 2 year limit will effectively be imposed by another item in the Bill:
If the opt in provision is included, it would not be necessary to limit this to parties whose relationship ended within a specified time before commencement because this is already achieved by item 36 [of Schedule 1] which would amend section 44 of the Act. The new section 44 would in effect provide that an application can be made to the court within a period of 2 years from the date the relationship ended and an application can only be made after that date if the court grants leave based on hardship or inability to support themselves.
3.151 The WA Attorney-General, the WA Family Court and the Law Society of WA all queried why the Commonwealth had not taken up the opportunity to provide the WA Family Court with power to make superannuation splitting orders.
3.152 The WA Attorney-General explained that the Family Court Act 1997 (WA) enables de facto partners (both same-sex and opposite-sex) to use the WA Family Court in property and other disputes. The WA Family Court explained that the WA legislation 'effectively replicates almost all of the property provisions of the [Commonwealth] Family Law Act'. The WA Attorney‑General was pleased that the Bill would provide the same benefits to de facto couples in other Australian jurisdictions that 'WA legislation already provides to similar persons in this State'.
3.153 However, the WA Attorney-General was concerned that the Bill does not implement WA's reference of powers to the Commonwealth in the Commonwealth Powers (De facto Relationships) Act 2006 (WA). The WA Attorney-General explained that this law refers powers over superannuation matters arising out of the breakdown of de facto relationships (both same-sex and opposite-sex). The WA Attorney-General was concerned that, by not implementing the WA reference of power, WA de facto partners will be discriminated against, 'in comparison to those in other Australian jurisdictions in superannuation matters'.
3.154 Similarly, the WA Family Court pointed out that the court is currently unable to make 'superannuation splitting orders' in cases involving de facto couples and that:
State Parliament lacks the necessary constitutional authority to enact legislation that would allow the Court to make such orders and hence parties to de facto marriage relationships in this State do not have the flexibility afforded to married couples to resolve disputes in cases involving superannuation.
3.155 The WA Family Court felt that the Bill's failure to deal with this issue is:
...unfortunate as the passage of the proposed legislation affords what would appear to be a suitable opportunity to provide the Family Court of Western Australia with this additional jurisdiction.
3.156 In response to questions on notice as to why the Bill does not deal with the reference of powers from WA, the Department explained that:
Implementation of the narrower reference from WA would leave jurisdictional issues arising in 'cross-border' cases involving WA and any State outside the scheme, where different laws applying in those States will affect outcomes in cases...
WA is not able, under its own de facto property settlement and spouse maintenance law, to oust the jurisdiction of the other States, as the Commonwealth is able to do, to the extent that it has power to do so.
Implementation of the narrower reference from WA would also require duplication by WA of future amendments to the Commonwealth's regime relating to the making of orders altering interests in non-superannuation property held by de facto partners. Otherwise, the Family Court of Western Australia, in proceedings between de facto partners with superannuation (as most couples will have), would need to take into account one set of considerations, under the Family Law Act 1975, in considering whether to make a superannuation splitting order, and another set of considerations, under WA law, in considering whether it is appropriate to make an order altering interests in their other property.
The three coalition senators have made two further recommendations:
1.1 The Coalition Senators support recommendations 1 to 5 of this report but wish
to make two additional recommendations in relation to this Bill.
Amendment to Item 21 of Schedule 1 to insert new section 4AA
1.2 Paragraph 4AA(5)(b) in the Bill currently provides:
A de facto relationship can exist even if one of the persons is legally
married to someone else or in another de facto relationship.
1.3 A person cannot be part of 'a couple living together on a genuine domestic
basis' with more than one person at a time unless the Parliament wants to endorse de
facto polygamy. It would be hard to describe the parties as a 'couple' when there are
other de facto partners in residence.
1.4 The Coalition Senators recommend that the words “or in another de
facto relationship” in paragraph 4AA(5)(b) of the Bill be omitted.
1.10 The Coalition Senators recommend that the proposed section 90SB be
omitted, and substituted with the following:
90SB When this Division applies – that there is a child etc.
(1) A court may make an order under section 90SE or 90SG, in relation to a
de facto relationship, only if the court is satisfied:
(a) that there is a child of the de facto relationship; or
(b) that the relationship is or was registered under a prescribed law of a
State or Territory.
(2) A court may make a declaration under section 90SL if it is satisfied that
the applicant or respondent was in a de facto relationship with another
party to the proceedings.
(3) A court may make an order under section 90SM, in relation to a de facto
relationship only if the court is satisfied:
(a) that there is a child of the de facto relationship; or
(i) the party to the de facto relationship who applies for the
order made substantial contributions of a kind mentioned in
paragraph 90SM(4)(a), (b) or (c); and
(ii) a failure to make the order would result in serious injustice
to the applicant; or
(c) that the relationship is or was registered under a prescribed law of
a State or Territory.
(4) If the court has power to make an order under section 90SM by reason
only of the fact that the party to the de facto relationship who applies for
the order made substantial contributions of a kind mentioned in paragraph
90SM(4)(a), (b) or (c), then the court is limited in its considerations under
section 90SM, to paragraphs 90SM(4)(a), (b) or (c).