Sunday, 18 December 2016

Family Court recognises US pre-birth surrogacy order

Family Court of Australia court registers US pre-birth surrogacy order

In a groundbreaking decision, for the first time ever, the Family Court of Australia has registered a US surrogacy order. The effect of the Australian order means, that for all purposes the US order can be enforced in Australia and that the parents of the child as recognised by the US order are recognised as the parents of the child in Australia.

Until this decision, reported as Re Halvard and Another, there were only two ways that Australians going to the United States could be recognised in Australia as parents (other than for citizenship purposes), either:

  • to apply to the Family Court for a declaration as to parentage. The problems with this approach are that it is extremely expensive, is slow and may not be successful. I am told that a colleague charges $18,000, and that would be a fair figure. However, recent cases have indicated that different judges of the Family Court have different approaches, so that it was unclear whether the parents would be recognised as the parents; or
  • if living in Western Australia, to apply to the Family Court of Western Australia for a step-parent adoption order. That possibility arose from a 2013 case. However, the judge in that case told a legal conference in WA in 2015 that she was unlikely to continue to do so, out of concerns for surrogates. Further, following the Baby Gammy decision in the Family Court of Western Australia, it is doubtful whether that type of application would be successful now.
Not surprisingly, most parents who had returned to Australia with their babies born overseas chose, after they either obtained Australian citizenship for their children, (or if they were permanent residents or visa holders, ensured that their child was subject to the same visa conditions), to do nothing further. Why spend a lot of money going to court for little purpose?

There is another risk. Those who were from Queensland, NSW and the ACT in particular were at special risk that in going to the court that they might be referred to authorities to see if they had committed an offence, and then be prosecuted. A Sydney judge referred two Queensland couples to the Queensland Director Prosecutions for this purpose back in 2011. As it happened, neither couple was prosecuted.


This case

The parents lived in the United States. One of the parents was an Australian citizen and the other was a US citizen. The boy, X, lived with them in the US. The father had family members in Australia, and the intention was to travel to Australia from time to time.

The parents underwent surrogacy in Tennessee.They entered into a surrogacy agreement with a surrogate. X was conceived from the father's sperm and the mother's egg. A court in Tennessee ordered, when the the surrogate was 30-32 weeks pregnant that when the child was born, the parents would be declared to be the parents and that they would have custody of the child.

What is the effect of registration?

The Family Law Act provides that an overseas child order, made in a prescribed overseas jurisdiction, can be registered with the Family Court of Australia. Once it is registered, the overseas child order takes effect in Australia. Therefore if it is possible to register an overseas child order, and the form of that order recognises the intended parents as the parents of the child, then that order will transform the child's identity and legal relationship with the parents, not only in the overseas country [as happened when the overseas order was made], but also in Australia.

This means, for example, that the only people who have been granted parental responsibility for the child, in effect for the Australian Passports Act, are the parents, not the surrogate. Therefore the surrogate's consent for new Australian passports for the child will not be required.

If the parents were to die, then they would be recognised under Australian law as the parents of the child for inheritance purposes. They would also be recognised as the parents for child support purposes.

If the order were not registered, it is uncertain if this were the case.

Why did it go a judge?

The parents had first made an application to a registrar of  the court, who had declined to register the order. Because there was no ability to review the registrar's decision, and the law allowed the parents to bring an application before a judge, they did so.

What are reasonable costs?

Justice Forrest rejected the submissions of the parents' lawyer that the surrogacy arrangement was a commercial surrogacy arrangement under the Queensland and NSW Surrogacy Acts. His Honour found that the surrogacy agreement was altruistic  and was not a commercial surrogacy arrangement disguised as altruistic surrogacy. His Honour stated:

"The agreement in this case between the applicants and the gestational carrier in Tennessee was one in which the gestational carrier was reimbursed by the applicants for all of her pregnancy related out-of-pocket expenses. The terms of the agreement that provided for that certainly appeared quite generous but not so generous that I would consider it a commercial surrogacy agreement masked as one in which reimbursement is provided."

Implications of the decision

Any Australian intended parents who have undertaken surrogacy in the US should consider making application to register their US orders with the Family Court of Australia. However, they should get expert legal advice on doing so. Properly handled, the registration application should be relatively quick, cheap and effective.

Registration may also be relevant in Hague child abduction cases where the order has been made in the US, and the child is wrongfully removed to Australia or wrongfully retained in Australia.

Those contemplating or in the process of undertaking surrogacy in the US should get expert Australian legal advice before the orders are made there- because of making sure they are the right form for the Australian courts.

Those who have undertaken surrogacy overseas, especially in the US, and believe that they have committed a criminal offence in Australia in undertaking surrogacy in the US should get expert Australian legal advice. They may not have committed any criminal offence after all. This is particularly important in NSW for example, as there is not time limit for offences there.

The case makes it plain that pre-birth orders made in the US are covered. Pre-birth orders are made in about 40 US states.

Australian citizens who live abroad who contemplate returning to Australia at some stage with their children should, in my view, seriously consider undertaking registration.

Obtaining registration should be a lot cheaper than having to obtain a parenting order under the Family Law Act.

Limitations of the decision

The case will only apply to surrogacy orders made in the US and New Zealand. It will not apply to surrogacy orders made elsewhere, for example in Canada. This is because only those jurisdictions that are prescribed overseas jurisdictions can have their orders registered in Australia by this method. Regrettably very few jurisdictions are prescribed overseas jurisdictions. 48 of the 51 US jurisdictions are prescribed overseas jurisdictions. The ones that miss out are: South Dakota, Missouri and New Mexico.

Justice Forrest noted that in a previous decision in 2013, Justice Ryan declined to register a pre-birth surrogacy order made in South Africa because:

"The simple fact that South Africa is not included in the schedule that lists the countries that meet the definition of “prescribed overseas jurisdiction” is what prevented that order from being registered in this Court."

Those contemplating registration should NOT do so by registering their order through the Attorney-General's department. They should also be very careful about how they undertake the registration process. The judgment shows that the parents had been rejected by a registrar, and that the process before a judge is discretionary. If the judge believes that it is commercial surrogacy, then the application might be rejected.

Every case is different

What might be great for one couple, might end up exposing another to not getting registration or, worse, possibly being prosecuted. Expert advice is needed. Where intended parents lived at the time they underwent the surrogacy is also relevant, because each State and the ACT have different laws as to surrogacy:

  • Queensland: If the limitation period has run out for prosecution (1 year after the last payment), then it should be considered, with careful consideration to whether the expenses were reasonable.
  • NSW: If the parents underwent surrogacy before 1 March 2011 or signed their surrogacy agency retainer before that date, then registration is appealing. For those after that date, consideration should be given first as to whether the expenses were reasonable.
  • ACT: Consideration should be given first as to whether the expenses were reasonable.
  • Victoria: Registration is recommended for those who entered into the surrogacy arrangement after 1 January 2010. For those who entered into before that date, consideration should be given as to whether the expenses were reasonable.
  • Tasmania: Registration is recommended.
  • South Australia: Care should be taken to make sure if it is a pre- July 2015 or post-July 2015 surrogacy arrangement. If the latter, was the consent of the Attorney-General obtained? Consideration either way would need to be given as to whether the expenses were reasonable and whether there has been the payment of valuable consideration.
  • Western Australia: Care should be taken as to whether there is a surrogacy arrangement for reward has been entered into in breach of the Surrogacy Act and the Criminal Code. If not, then registration is recommended- but it may not be advisable to do so in Western Australia. 
  • Northern Territory: Registration is recommended.

Sunday, 9 October 2016

Court orders wife to refund over $200k in spousal maintenance

A  case last year in the Family Court of Australia, which had the effect of requiring the wife to repay the husband over $215,000 in spousal maintenance previously paid has demonstrated that it is possible for substantial interim spousal maintenance orders to be discharged- and to be backdated to when the order was first made.

How spousal maintenance orders are made

In order to establish that a court ought to make a spousal maintenance order, an applicant needs to show first that they cannot meet their own reasonable needs, and then that their spouse or former spouse has the capacity to do so.

The wife’s capacity

The case turned on whether the wife had the capacity to meet her own needs. At the time of the first hearing in December 2013, the wife made full disclosure of her financial circumstances, including what she knew of her interest in her late father’s estate. Despite her father dying four years before, there had not been a grant of probate.  She was not an executor, and held a minority interest in various companies, known as the V Group. The V Group was controlled by her brothers. It seems that she did not know what her entitlement was.

The wife was a health care professional who had the care of the parties’ children.
Her income was $300 per week from sessional work. Her late father’s estate provided for her to have two new luxury vehicles at any one time: a convertible and an SUV.

The husband’s capacity

The husband had the capacity to pay. The husband owned property on his account worth $75 million and debts of $54 million. The uncontested evidence was that he had income of $4 million a year. The wife was a health care professional who had the care of the parties’ children.

The spousal maintenance order

The interim spousal maintenance order was made at the rate of $130,000 a year the equivalent to a pre-tax income of $200,000, to continue until the property settlement application had been heard at trial. This payment was on top of the husband paying for the wife’s rates, mortgage and rates, taxes, utilities (gas, electricity) and school fees. In total, the husband was required to pay at the rate of $336,000 a year for these obligations.

The first hearing

The interim order was made in December 2013. Ten days later, the husband sought to appeal the decision.

The second hearing

As the appeal had not yet been heard, seven months later, in June 2014 the husband sought to have the initial spousal maintenance order discharged. He was unsuccessful. The husband also appealed that decision.

The husband argued at the second hearing that there was now information available to show that the wife had received, or would receive, shares from the estate of her late father in the approximate sum of $7.2 million and she was able to support herself.

The wife submitted “that she had fully disclosed her interest in the family companies based upon the information she had been given” and there was no clear or reliable evidence to support the husband’s assertion that the value of the shares from the estate of her late father were valued at $7.2 million. The trial judge noted that there was still “considerable dispute about what interest, if any, the wife [had] in her late father’s estate”.

The appeal hearing

The appellate court noted that the wife’s father died in 2009 and that probate had not yet been sought. The court did not accept the husband’s claim that the wife had failed to disclose these “assets” and, indeed, it was beyond doubt that the wife revealed these assets and interests in the first hearing before the trial judge. In the wife’s statement of financial circumstances filed in 2013, she deposed to having shares in various companies, which she named, and an interest in the estate of her late father, but she did not know the value of either. Further, in her affidavit filed the same day, the wife set out all that she knew about her shares and her interest in her late father’s estate.

New evidence

The wife’s father in his will expressed the wish that V Group provide the wife with $150,000 per annum, net of income tax (or $20,000 more a year than the husband was obliged by the spousal maintenance order to pay the wife). There was no evidence that the wife requested this payment from her brothers, or that any request that she had made for her father’s wish to be carried out had been rejected. Importantly, there was no suggestion that there would be an objection by at least one of her brothers to such a voluntary payment.

The wife had also obtained a personal overdraft of $1 million, apparently to meet her legal expenses and her living expenses.

Discharge of the spousal maintenance order
A spousal maintenance order may be discharged “if there is any just cause for so doing”. The court considered that there was now evidence before the court that demonstrated that the wife was able to support herself adequately. The inference from the evidence was that, if requested, the wife would receive that benefit. The wife had a good relationship with her brothers, it was a wish expressed in the will of their late father and the brothers provided the wife with late models of luxury motor vehicles, possibly through the V Group (although that was unclear on the evidence).
The $1 million overdraft was “a two edged sword though, in that any amount that she draws down from that overdraft immediately becomes a liability that she must repay.”

The court ordered the discharge of the spousal maintenance order. The court noted a statutory provision permitted a court to express an order discharging a spousal maintenance order “to be retrospective to such date as the court considers appropriate”. The court acknowledged that that will require the wife to reimburse the husband for the payments made by him, but she could pursue the payment of $150,000 per year, and she had the ability to draw down her overdraft of $1 million.

The decision is reported as Hall and Hall [2015] FamCAFC 154.

Sunday, 14 August 2016

Launch of Dangerous Liaisons

On Thursday night, I had the privilege of speaking at the launch of Marina Bakker's new book Dangerous Liaisons. The launch was at Mary Ryan's bookshop in Brisbane. The book is a great how to guide about how to avoid falling into relationships with sociopaths and psychopaths, who are often very difficult to pick. And once in a relationship with one, it can be very hard to get out.

Before I spoke, Marina was interviewed by fellow family lawyer, and founder of Our Children Australia Lorrie Brook (l).

When I spoke, I praised the book, including its key message: prevention is better than cure. I spoke about how I had fought domestic violence for over 30 years, and I gave a story of hope. Many years ago I acted for a client who had to be rescued from her farmhouse by police. If they had not acted, it is likely that she would have been killed by her husband.

Some months after she had escaped, in the midst of a bitter Family Court fight, I happened to call my client to see how she was doing. I had expected her to tell me that life was awful. After she split up, she fell on financial hard times- living in outer suburbs, with few qualifications, no car, little public transport, shunned by her church for leaving her husband and in an ugly, ugly court case.

Instead my client told me that life was grand. "I'm free!" She was not looking at death every day. My client had managed to get a job, was able to go to sleep at night, had joined a new church, had new friends. Her mystery kidney disease, attributed by doctors to stress, had gone away. And she had a new interest. My client, who was about 60, had taken up of all things waterskiing! I would never have guessed, and would have never have known, except I asked.

The point is that life goes on after a relationship ends. Life happens only once. Every day is precious. No longer held back by the fear of violence, my client was able to thrive and captured the beauty of life every day. Her story reflected one of the key messages of Dangerous Liaisons- we have to be careful who we form relationships with - as these emotional vampires can suck our life force out of us.

The three basic rules of advocacy- taught to me by a man on Monday

Last week I was thankful for a man who did not know when to shut up. This may sound ironic coming from a lawyer, especially a lawyer who blogs, presents and writes articles as I do, but one of the essential features of being a good advocate is knowing when to shut up.

After all when you are in court usually you are seeking to persuade one person- the judge. Advocates have to tread a fine line between forceful advocacy for their clients, and not going too far.

Those who act for themselves usually have not been advocates, and simply are not objective, and often focus on the wrong things. Sometimes they are even worse, bordering on the abusive of the judge. As the old adage goes- a person who acts for themselves has a fool for a client.

Be that as it may, often when people do not have any money, they act for themselves. If they are going to do so, then they should listen as to what not to do.

The three lessons that can be learnt from the man who did not know when to shut up are:

Number three lesson

Turn up at court. 

His first sin was not to turn up at court. This was not the first time it had happened. The previous occasion after he had not turned up, the man had been ordered by the judge to set out in an affidavit why he had not appeared. His excuse was akin to the dog ate his homework: he forgot, oh and his lawyer did not send the letter through confirming the date. And he was the applicant, asking the court to be able to spend time with his children.

Number two lesson

When the judge speaks- stop talking.

His second sin was to keep talking when the judge was talking. Several times her Honour had to politely intervene, and point out to him that she had telephoned him to get an explanation about why he was not at court, and tried to give him an explanation that I was seeking orders in default of his participation. And his reaction to that courtesy? To keep talking over the top of the judge- to then be told repeatedly by her Honour to the effect that it was her turn to speak.

Number one lesson

Don't abuse the judge

So after x occasions of the judge telling the man not to talk over the top of her, he raved, and raved and raved on, finishing with words I had never heard in a courtroom directed at a judge before: "You can go and @#*& yourself". (At which point almost everyone in the courtroom gasped.)

Her Honour's reaction was not to order a warrant issue for his arrest for contempt, but merely these statements: "Terminate the call. [Pause] Now, Mr Page, what orders are you seeking?"

Shortly after that, with assistance from the independent children's lawyer, my client obtained the orders she was seeking from the court in the absence of the father. And in the process saved a lot of money and heartache by avoiding a three day trial.

Thank you! His actions had ended the third of three cases involving that man and my client. Hooray, what a relief!

Monday, 18 July 2016

The real faces of domestic violence

I saw today a very powerful article by ABC showing the faces of Australian women killed in 2015 as a result of domestic violence. The faces of these women put faces on the statistics. These women were real, and now are gone, never to return. When we think about the impact of domestic violence on our society and on our children, never forget these women and women like them.

The article, and the haunting portraits are here.

Sunday, 17 July 2016

Pauline Hanson's family law policy

I have set out below Pauline Hanson's family law policies. It seems a policy written by men who are bitter about their divorce experience- for men bitter about their divorce experience. One of the policies is to abolish the Family Law Courts and replace it with a Tribunal, to be appointed with people who are non-lawyers and non-judges, and presumably not pesky social workers either.

 During the Howard era, a Parliamentary committee recommended the abolition of the Family Court of Australia. Instead, the Howard government boosted funding for mediation enormously- to such a degree the amount spent by the taxpayer on mediation was greater than that of the courts, and set up what is now the Federal Circuit Court of Australia.

One of the views about why the court was favoured over a tribunal was that it was considered that a court was much more likely to protect women and children who are subject to or exposed to violence and abuse. After all, in a tribunal, there may not be any right to representation- which will fall particularly hard on women who have been the subject of domestic violence.

Presumably when One Nation talks of the Family Law Court, it is talking of the Family Court of Australia, the Federal Circuit Court of Australia and possibly funding at least for the Family Court of Western Australia.

I must be missing something. The policy calls for abolition of the Family Law Court- but then says that protracted cases or incidents involving violence or abuse are to be dealt with in the respective courts. Which courts? The tribunal? Or State courts? Or the Federal Court of Australia? Given that an estimated 80% of matters before the Family Court of Australia and the Federal Circuit Court of Australia involve allegations of violence and abuse, what happens with these cases?

Another policy is that if you owned the property before hand, you get to keep it but otherwise it's a 50/50 split. Great for men- bad for women. It hardly seems a fair way of resolving matters.

Just as the policy of three strikes and you're out- if you deny the other parent three access visits- look out you're before the tribunal to look at moving the kids over to your ex. Without ever condoning breaches of court orders- good bye best interests of children. Punitive policies trump the rights of the child, apparently.

And here are the policies:


Pauline Hanson’s One Nation believes that safe, secure and happy societies require as a guiding principle, strong functional family units. One Nation considers governments should recognise this basic principle and adopt responses that are aimed at long term family stability. One Nation believes that until a fair and just system is found for both parties, we will see the continual rise of domestic violence and suicide and murders associated with custody battles.
The following principles will be adopted by One Nation to rectify unjust applications from the Family Law Court and Child Support Agency.
  • One Nation supports mediation.
  • The Family Law Court will be abolished and replaced with a Family Tribunal.
  • The Family Tribunal will consist of people from mainstream Australia. Respected members from local community groups encompassing health, social and community interests groups will be invited to participate.
  • The functions and operation of the Child Support Agency will be reviewed and extensive community consultation will occur to develop appropriate guidelines for operations.
  • The punitive maintenance regime will be overhauled as a matter of urgency – key factors in this review include:
    1. A formula that recognises the new cost of maintaining two households.
    2. A pre–determined formula for non-custodial parents that in which additional incomes for overtime or a second job do not cause maintenance payments to increase.
    3. Recognition that a child’s standard of living following divorce cannot be maintained at it’s pre-divorce level.
    4. A formula based on after tax income not before tax income.
    5. New families and their needs to be recognised in maintenance schedules.
    6. A formula that recognises the number of children, their ages and individual requirements.
    7. Property owned prior to the relationship will remain the possession of the individual. Settlements will be based on a 50 / 50 split between partners.
    8. Recipients of Sole Supporting Parents (SSP) benefits will require counselling and verification of a family breakdown. When the youngest child reaches school age the SSP will be required to obtain work based on job availability, opportunities and qualifications.
  • Protracted settlements or incidents involving violence or abuse will be dealt with in the respective courts. Both parties will be entitled to legal aid and the unsuccessful party will pay the costs. Perjury charges will be enforced in court.
  • Joint custody is the option of choice for ONE Nation. It gives recognition to the vital role both parents have in relationships with their children. Joint custody can provide some stability in an environment that is otherwise turbulent for children.
  • Ideally the same case managers will work with families from entry to exit. Denied access will be referred to the case manager for immediate investigation. Three denied access visits will result in the non-custodial parent and custodial parent facing the tribunal to discuss shifting custodial arrangements.
  • Family centres will be developed and these centres will manage the family tribunals and associated support services including counselling, life style management, parenting plans, preparation with self representation and advocacy support. The family tribunals will be able to conduct a country circuit.
  • National Forums will be organised throughout Australia to identify family needs and identify community solutions that will assist in strengthening and maintaining the family unit. Responses to the forum will be pro-active and urgently address legislative inadequacies.

Fifteen tips on how to stay sane during property settlement

For over thirty years, twenty as an accredited family law specialist, I have assisted countless clients in property settlements. Here are my fifteen tips on how to stay sane during property settlement

Tip 1: remember your children

It may sound dumb- because after all you are thinking about a property settlement, and things are fixed with your kids, right? But it is essential at all times to focus on your kids first while also thinking about or actioning a property settlement. To do otherwise, means you could be failing in your primary duty- as your children's parent. Fighting between parents can and does impact on children even when not about them.

Some years ago I gave advice to a client that he would not have to repay a loan to his former parents in law because the loan was drafted in such a way that it was outside the limitations period: they could not sue him for repayment of the loan. I warned him that by taking this technical legal point, that it might poison the well, particularly with his children. Sensing that he would save tens of thousands of dollars, my client instructed me to take the limitation point.

Some months later my client came back to me and said that his children were not speaking to him. They were adults. I asked why. The answer- because he had taken the limitation point, they were disgusted that he would not be repaying his former parents-in-law, the children's grandparents. When he asked what he could do, I reminded him of my earlier advice. I said that he could drop the point, or could nominate a lower figure, so that at least the pain of his former parents-in-law would be eased. He refused to do so- and then wondered why his children weren't speaking to him.

Tip 2: drop the anger

I can't emphasise this enough. Once it's over, it's over. Let the anger go. When it comes to property settlement, all anger does is fuel the fires- and lead to at times a HUGE increase in cost and delay. Anger leads to hate. Hate leads to bitterness. Bitterness leads to destruction.

I remember many years ago when I had two complex property settlements side by side. Each involved a husband who came into the marriage with multiple properties and businesses. Each were tough cases. In each case the husband represented himself, and I represented the wife. In one case, after particularly hardnosed negotiations, we settled it. After getting barrister's advice, real estate valuations plus an accountant's valuations, my client was out of pocket $10,000. In the other case, with very similar facts, my client spent $300,000! The difference-  the husband in the first case was realistic, but the husband in the second case decided to put every possible roadblock in place (including a series of lawyers from time to time) to try and pressure my client to come back. He threatened her. He threatened to kill me. I ended up on the protection order. The domestic violence case ran for 7 days, still a Queensland record (the usual domestic violence trial runs half a day to a day). We had 30 + appearances in the Family Court BEFORE a 9 day trial- then a stay application and an appeal. I had to move home. We ultimately had appearances in four courts (Family Court , two separate Magistrates Courts, and the Federal Court). And the difference- the attitude of the husbands- one of whom was a hardnosed businessman who engaged in realistic negotiations- and the other a hardnosed businessman who used his anger that his wife had dared leave him to result in a scorched earth policy. If he had been sensible, and not angry, he could saved each of the parties an enormous sum of money and years before the courts.

For the same reason, your lawyer's role should be to represent your interests and not your anger. Doing the former will speed up your matter, and decrease your costs. The latter will increase your costs, slow the matter down, and put you at risk of having a costs order made against you.

Tip 3: get the best legal advice you can afford

Getting the best advice that you can afford means that a lawyer hopefully with lots of experience will be able to head you in the right direction, not tilting at windmills, and will be able to give you pointers as to what to look out for.

Funnily enough, it's usually helpful when your ex does the same, and gets legal advice from a lawyer who knows what they're doing. Your ex should then realise his or her dreams of world domination, or at least trying to punish you for leaving, are probably not worth the effort. Usually the more expensive lawyer your ex gets, the higher the chances of settlement.

Ask around as to who is good. An accredited family law specialist is a good starting point. Contact the Law Society in your State for a referral.

Tip 4: listen to your lawyer!

It may make for uncomfortable listening, but it is important to heed the advice of your lawyer. It could save you big bucks and lots of heartache. More importantly, if you do decide to tilt at windmills, it'll almost certainly impact on your kids. Your lawyer's role is primarily to give you objective legal advice- not be your best friend, nor your counsellor.

Tip 5: have a support network

Separating is one of the hardest things to do - EVER- and it is essential that you have a support network. If you don't have one- get one. Join a club or a church- meet new people. Friends and family can help you get through the crisis quicker, and help you remain focussed.

Tip 6: get a counsellor

I can't emphasise this enough. If you are about to enter into the most far reaching financial decision of your life, do so with a clear head.

Tip 7: get financial advice

Your lawyer is not allowed to give you financial advice. That is what financial planners do. I have found it is very helpful for clients to be part of a team working collaboratively for the client- so the client also gets financial advice, and can therefore make informed decisions about she or he might do depending on how the split occurs.

Tip 8: think positively

It is easy to catastrophise - and think that your whole world is going to come crashing down on you. Most of the time that doesn't happen. You wake up the following day! Take each day at a time. Be kind to yourself. While it may seem hard to think positively in such a period of gloom, being positive (and let's be clear, I mean being realistic) can make all the difference.

Tip 9: get fit

Having a fitness regime will help you through the difficulties. Endorphins and oxygen kick in when you exercise. The brain is emptied of its rubbish and allowed to function clearly again. You feel stronger and more positive about the world. Chances are, there will be less risk of wallowing in depression if you are fit.

Tip 10: come prepared!

One of the essential steps in sorting out a property settlement is working out the balance sheet. What do the two of you own? Who owns what? How much is it worth? Is there a defined benefit superannuation fund? Are there companies or trusts?

And to make things even more complex, lawyers will want to know - what was everything worth when the two of you got together- and if you have been separated for a while- what is everything worth now, compared to when you split up.

If there is going to be a dispute about who contributed what and when, get as much documentation as you can to show in an objective sense who paid what and when, or how much something was worth back then.

For tips about how to write up a balance sheet- see my post: the 8 steps on to write up a balance sheet.

If you are going to a mediation, or having negotiations with the other side,  prepare for each step. A client who is switched on can help guide their lawyer in their instructions- and can save huge amounts of time on the lawyer's part.

Tip 11: negotiate, negotiate, negotiate!

Whether talking to your ex direct, or through lawyers, or outside the court room, or in mediation- chances are you will be negotiating on the way through- and again, and again, and again. Sometimes clients put all their eggs in one basket- for example, they focus on the mediation to the exclusion of everything else- for the trial or for mediation. Better to think that what you are engaged in with your ex is a continuum of negotiations and process until it is over. Be realistic, but assertive!

The range of property settlement is that - a range- and what one judge might do is different to what another might do- even in similar circumstances. Many years ago, I took part in an exercise when lawyers were asked to assess the range on property settlements. Of the 60 lawyers in the room, spanning in experience from old practitioners to green newbies, there was heated disagreement about many of the exercises- and a range of 15%. For example in one case a lawyer was adamant that one party would get no more than 55%, and another lawyer was adamant that the same party would get 70%!

If your lawyer tells you that the percentage will be precisely x%, for example 45%, and not a range- beware, beware, beware. It is rarely thus.

Tip 12: focus on costs

If you are lucky, and you are smart, you could have a property settlement done and dusted for under $4,000. If you are unlucky, it could cost you a lot more.

A colleague of mine said many years ago that many of his clients when told of the range of likely property settlements and the range of costs would invariably hear the high end of the range for property settlements and the low end of the range for costs!

Work out in percentage terms in your matter what the likely costs outcome might be. If your lawyer says that you and your ex are 10% apart- and you have a net pool of $400,000- well, that's $40,000. And if your lawyer says that it is going to cost you $20,000, there's 5%, or half the difference.

Tip 13: prepare for death

It is important to have peace of mind to make sure that if something goes wrong, your children have been properly provided for.

Death and taxes, as Ben Franklin said, are inevitable. You may be unlucky and die before your property settlement is over. Instead of leaving a mess for others (and potentially cutting your kids out of the will), make sure you have an up to date will, and consider other basics: severing any joint tenancy and nominating beneficiaries for your superannuation and life insurance. Talk to your financial planner about these as well as getting legal advice. Accidents and illnesses happen.

When I was young and green, I had a client who was seeking 60% of the property. Aside from a few odds and sods, it was ALL owned by her husband. He was a general good for nothing who had made a lot of money. One Friday afternoon, the day before court (as court was on the Monday morning) the four of us- my client, her ex, his lawyer and me- found ourselves around a table trying to cut a deal. It didn't work- and didn't go down well with me or my client when I asked the husband: "Who owns the 50 foot boat?" He responded: "A man in Sydney." I might have been green, but I could smell a liar way back then. We didn't settle. I made arrangements to meet my client at court on Monday morning.

Instead, on Monday morning my client called me and said she was not coming to court. Being young and green, I yelled at her: "You have to come to court now!" She then told me that her ex had died on Saturday on THAT boat, which incidentally he owned, and that he hadn't changed his will, so she was executor and sole beneficiary. At that point my client was effectively suing herself in the Family Court. While she was sad that he had died, she was also very happy that instead of getting, at most, 60% of the property, she was now getting 100%, because he hadn't changed his will!

Tip 14: avoid court

Only mad people and lawyers like court. It is best to avoid at all costs. The outcome is uncertain, and how long it takes is unknown- but as reports have come in over the last year- getting worse. You might be told that you have two years to trial, and possibly another year after that for judgment.

Having said all that- court is the only place where someone can order your ex to do something. Negotiations and mediation cannot. It is the option of last resort, but sometimes painful though it is, you may have little choice but to go there.

Tip 15: formalise the deal

If you don't formalise the deal, you may end up with a liability to pay  stamp duty, withholding tax,  capital gain tax or a potential future claim from your ex. Formalise! Formalise! Formalise! This will normally be by way of consent orders (orders made by a court in which the parties have consented to being made) or a binding financial agreement, and sometimes by both. Each will depend on your case's unique characteristics.

The 8 steps to write up a balance sheet

One of the things that I learnt from 30+ years of helping clients with property settlements (20 of which as an accredited family law specialist) is that working out the property pool is one of the most vital. Knowing what your cake is and its size is essential before it is cut up.

I have lost count the number of times when other lawyers haven't focussed on what is the pool - and as a result a dispute at times has occurred which was entirely avoidable, while that lawyer comes up to speed.

Because of the need to know what the pool is, I always ask my clients before the first appointment to prepare a balance sheet and bring it in. Here are my tips about how to write it up.

Step 1: list all the property

List out all the property owned by each of you. Put beside each item who owns what- and then how much that property is worth.

I like to put under each item the debt for that item. For example, the husband and wife might own a house together. I will list out the address, who owns it, and the estimated value. I will then put as the next item who the mortgage is to, for example, Commonwealth Bank, and how much is owned- and them come to a net figure for that asset.

Step 2: total all the property

This then gives you the total gross property.

Step 3: list all the liabilities

Now list out the liabilities in the same way . Don't double count! If you have put the mortgage and the car loan, for example, in the list of assets, don't put them in here as well.

Step 4: total the liabilities

Step 5: subtract the liabilities from the gross assets

This will give you the net assets. Put this figure down.

Step 6: list the superannuation

In the same way, list the superannuation you believe each of you own.

Step 7: total the superannuation

Step 8: VOILA! Total the net property and superannuation

This will now give you the total net property pool of you and your ex.

Saturday, 9 July 2016

The mechanics of a Hague Convention case

What is the Hague Convention?

Australia, along with many other countries, is a signatory to what is commonly called the Hague Convention, which enables children to be returned to their home country when they have been abducted abroad. There many Hague Conventions, but the 1980 one is the one concerning international child abduction. There are two other Hague Conventions that might also apply- one from 1961 and one from 1996. I'm going to focus on the 1996 Convention.

What are Hague Conventions?

Hague Conventions are, not surprisingly, conventions signed at The Hague in the Netherlands. They are written up under the control of the Hague Conference on Private International Law, a body which has been in existence since before World War One. The Hague Conference in turn is comprised of several member States. Australia is one of the oldest members, being a member since before World War One.

What is private international law?

When people go overseas, their legal problems often go with them. The problem is that law in other countries is not the same as the law back home. This is the essence of private international law.

Step one: does the Hague Convention apply in your country?

For the Hague Convention to apply, there must be a wrongful removal of a child from country A to country B or a wrongful retention of the child in country B- in other words it was entirely proper to have removed the child from country A, for example, for a holiday, but the child has been held over. Is your country a signatory? If not, the convention does not apply. Is country B a signatory as well? If not, the Convention will not apply. Both countries need to have signed up. It's easy to check- just look here or here.

Step 2: has there been a wrongful removal or wrongful retention?

There has to have been a wrongful removal or wrongful retention. Without either of these, the Convention cannot be invoked. For example, some time ago I had a Hungarian case. Hungary allowed a parent to take a child overseas without the consent of the other parent for up to 1 year. What on the face of it was a wrongful removal, on closer checking was not, because the removal was allowed under Hungarian law.

Step 3: when did it happen?

To get the kids back, the wrongful removal or wrongful retention must have happened, and happened within the last year before the application is lodged. A parent who agreed to the children going overseas for a holiday, but the time for the holiday has not expired, means that there is not  a wrongful retention yet (and may never be, if the child is returned in time). There are different approaches by courts in different countries about when wrongful retention in particular commenced. Legal advice on the ground in both countries is preferable.

Step 4: is the child 16 or soon to be 16?

If the child is 16 or over, do not go any further, as the Convention does not allow the return of children 16 and older. It can be problematic getting early teens back in any event, as often they may have firm views.

Step 5: the wrongful removal or wrongful retention was in breach of the person's rights of custody

The parent (or other person who has rights of custody, such as a grandparent), needs to show that they have rights of custody, as defined under the Convention, such as the right to decide where the child lives, and that those rights were interfered with. Most of the time this can be fairly readily established.

Some years ago I had a tricky case between Australia and New Zealand. I acted for the mother, who was seeking that her child be returned to Australia. She was seeking orders against her parents, who had taken the child to New Zealand. Their first defence was that they had rights of custody. Oh dear, if only their lawyers had taken the time to read the Convention carefully. There was no defence. What the grandparents relied upon was an order in New Zealand that said that they had custody of the child. However, the same order said that they and my client had guardianship- which in turn met the definition of cusotdy within the meaning of the Convention.

Step 6: Was the child an habitual resident?

It's necessary to show that the child was an habitual resident in country A. Most of the time this is pretty easy, but sometimes with people who move around a lot, it can be a lot harder to show.

Going back to my New Zealand case, the grandparents moved around a LOT- between NZ, Australian and Papua New Guinea. They kept one step ahead of my client. As soon as she got close to them and her child, off they would go again. Finally, they moved from New Zealand, settling in Queensland. My client found out, sold her belongings, and came across. She then discovered that just before she came over, they moved again- from southern to northern Queensland- no doubt to prevent her from having contact.

When she finally discovered where they were, my client trekked to north Queensland to discover that they had gone - again. They had gone just 24 hours before she turned up.  Their time with the child in Australia had been some 6 months or so- but they had settled in Australia and were not mere tourists.

It was obvious to me that the child was habitually resident, for the purposes of the Convention, in Australia, and ought to be returned to Australia, where my client now lived, she having altered her life to follow him.

I was told by Australian and New Zealand officials that I was in the wrong- because the child came from New Zealand. I was vindicated when halfway through the hearing the New Zealand judge told the grandparents that they could choose to go back to Australia or he could the child returned without them- because the child was habitually resident at the relevant time in Australia. The child came back to Australia- and ultimately into my client's care.


Step 7: who prepares the documents?

How the Hague Convention works is that the stay at home parent (or other person with custody) fills out forms,  and then lodges them with their country's government, which sends them to the government of the second country, which applies in the court of the second country for the return of the child.

Usually this means that the abducting parent has to spend a lot of money to defend the application, and the stay at home parent does not.

A parent who wants to get their child back is best advised to get a lawyer who has run these type of applications before, like me, to draft their material. While you can rely on the government to do so, it might be slow, and it might miss out on some nuanced point - which makes all the difference.

Step 8: what is the other country like at returning kids?

Don't make the mistake of assuming that because the other country is a Hague Convention country that the child will be returned quickly. Do your homework. Find out, preferably from a lawyer who has run Hague Convention applications in that country as to what thsat country is like.

Some countries do not grant legal aid on these applications, and require the stay at home parent to fund the legal proceedings for return. If the child has been taken to the US, for example, the stay at home parent in Australia has to pay for the lawyers to have the child returned. This can be very expensive.

The US State Department has a very useful report, setting out where, in US eyes, there is non-compliance. Some countries are very poor at returning children, such as South Africa, as I discovered when I visited there in March.

Step 9: are there any defences?

There are a number of defences or road blocks. Typically they are:

  • did the stay at home parent consent or acquiesce to the removal or retention?
  • was that parent exercising rights of custody? 
  • is there a grave risk to the child if the child is returned to that country?
  • will the return of the child be in breach of fundamental human rights obligations?
  • does the child object to being returned, and has attained an age and level of maturity that the child's views can be taken into account?
  • are there funds to ensure the child can go back (possibly with the abducting parent) and be accommodated and provided for in the first country?
Even if a defence is made out, they can be quite tricky - because aside from the highly technical nature of the case, a defence is discretionary. A parent might have made out the defence, but the judge may make an order in any event for the return of the child.

When a stay at home parent  is preparing the application, these defences should be considered- and as best can be - directly answered.

It shows that one must be careful in running a case. Last year the abducting parent (I was for the stay at home parent) was told by an Australian judge that she was "gaming the system" after she had filed in the Australian court a document saying that there was no risk of the children being in the father's care- no family violence, no child abuse and no risk of either- but had told the New Zealand court that there was "grave risk" in the children being returned in effect ot my client's care.

Step 10: get the lawyers to speak to each other

In the "gaming the system" case, I was able to speak to the lawyer handling the case in New Zealand. This was very helpful in ensuring the children were returned promptly. Getting the lawyer's name and contact details were the tricky part- because Australian and New Zealand authorities considered that they should be the sole conduits of information. 

Step 11: are there alternative procedures?

With some countries there can be alternative procedures. These should be considered before walking down the path to a Hague Convention application. The alternatives need to be considered, if only to be ruled out.

One alternative might be to rely on the 1996 Hague Children's Convention, which if it applies can be quicker and more certain.

Alternatives may be more expensive and slower, and less certain (or quicker, cheaper and more certain). What might be legal to do at home (such as grabbing your child back) might result in prison time abroad. Legal advice is needed- again in both countries- before going down the path that Sally Faulkner trod, that resulted in her being detained and then charged.

Australian Divorce Blog named in the top 100 divorce blogs worldwide

Well I didn't see that coming! This blog, the Australian Divorce Blog, has been named in the top 100 divorce blogs worldwide. It is the only Australian divorce blog on the list.

The blog has had over 500,000 hits, and I hope I continue to keep it relevant.

Monday, 27 June 2016

Joe Hockey's great big red tape nightmare part 2

Today I had the privilege, along with our other solicitors at Harrington Family Lawyers,  of receiving inhouse training from Murray Howlett and Jennifer Veitch, both from chartered accountants Pilot Partners about the withholding tax regime that starts on Friday. Although it looks like a nightmare, their flowchart above simplifies the nightmare created by this red tape monster.

Their key message- if you need to get approval from the ATO- which you will need to do with every bit of real estate to be transferred over $2 million, do so as early as possible, so that you have the ATO's certificate in hand for up to a year.

The process is supposed to be automated, and is bound to have delays, sooner or later. There are approximately 3 or 4 employees at the ATO devoted to issuing certificates- when the ATO estimates there will be 240,000 transactions a year. Or to put it another way- there are 5,000 transactions a week (assuming a 48 week year, allowing for leave entitlements), making each of the 4 employees (assuming there are 4 not 3) sign off on 1,250 transactions per week, or 250 per day. On a 37 hour week, that is 34 per hour, or just under 2 per minute.

The ATO estimates that turnaround time should be 14 days. I am not so optimistic.

One could imagine that if you are the vendor or indeed a husband in a property settlement and the house has a net value of over $2 million, you might be concerned by seeking the certificate if you have been behind in your taxes. I am sure the ATO will use this opportunity to engage in data matching and then say it wants the money, or it issues a garnishee notice, or it refuses to issue a certificate until money is paid to it.

For the person acquiring the property, if there has been a failure to withhold the right amount in the right way, there is potential for the ATO to come asking for more!

What is more, when there is a company or unit trust that has greater than 50% of the gross value of its assets are held in land (no matter the value) and 10% or more by value of the shares or units are to be transferred, no matter how they are to be transferred, it is wise to obtain a certificate declaring that the vendor is not a foreigner. Failure to do so might incur the acquirer a great big tax bill, penalties and interest from the ATO.

It is unclear yet what happens in the common or garden transfer from husband to wife (or vice versa) when their family home is worth more than $2 million. Say it is worth $2.4 million. The home is owned in half shares by each of the husband and wife. If the husband does not obtain the certificate from the ATO, the wife is obliged to retain 10% of the gross value- and pay that to the ATO, and not pay it to the husband.  It is unclear if the amount to be withheld is $120,000 (being 10% of the husband's share) or $240,000 (being 10% of the total gross amount). The fact that there might be a $1 million mortgage over the property is irrelevant- the withholding tax is calculated on the gross, not the net value.

However, in rollover relief cases, the amount to be withheld (and this is the windfall work for accountants) is calculated on 10% of the cost base amount calculated for CGT. Let's go back to the example above. Let's assume that the cost base is $1 million of the total value of the property. That might mean that the amount to be withheld is $100,000 or $50,000.

With that simple example, one can see that the wife, to protect herself, might wish to withhold $240,000, but the husband (if he will not or cannot obtain the certificate) says the amount should have been just $50,000. It remains unclear in that example if BOTH the husband and wife need to obtain the certificate.

Lots of room for argument between lawyers. Lots of red tape and nightmare for anyone from now on.

Imagine there is a grazing property. The wife is transferring her interest to the husband. The station has been in the family forever, and he knows a thing or two about cattle. He couldn't imagine not holding on to it. The property is worth $6 million. If she doesn't supply the certificate in time, does he withhold $600,000 or $300,000? If the cost base is $2 million, does he withhold $200,000 or $100,000?

But - what if each of the titles is worth less than $2 million? Let's say there are 7 titles, and each is not worth more than $1 million. Then no withholding tax may need to be held.

BUT- if the station is owned by the family company, and therefore there will need to be the transfer of shares in the family company from the wife to the husband, then without the declaration by the wife (, the husband might pay wittholding tax on settlement of $100,000 or $200,000.

For distressed sellers, there can be variation certificates issued by the ATO to ensure that secured creditors don't miss out. These can be applied for by the acquirer, the disposer, and by third parties, such as the bank that has security. One can see banks applying for these certificates as many times as needed.

The types of cases that are caught include:

  • sales
  • exercise of options
  • family law property settlements
  • estates
  • internal restructures, including possibly changes of trustees.
We are at the beginning of a great big, costly red tape learning curve. Lucky us. 

Thursday, 9 June 2016

Joe Hockey's great big new red tape nightmare

Thank you to Julia Gillard, Joe Hockey, Tony Abbott and the Daily Telegraph for the latest round of idiocy, which will cause pain to pretty well everyone, add a layer of red tape that is not there now, and give no real benefits.

The problem?

Remember- foreign investors, mainly Chinese, were buying properties, including Sydney harbourside mansions and not being honest about who was buying them.

The outcome- a media campaign whipped up by Sydney's Daily Telegraph- which then forced Joe Hockey to take action.

His first step was to require certain properties to be sold. One might think the problem was solved. Not so, apparently.

His second step was to get legislation passed in February this year, effective 1 July 2016 to impose a withholding tax in effect on MANY sellers and disposors of property. It was apparently aimed at the big end of town, i.e., those foreign investors who couldn't tell the truth, apparently, and had bought real estate worth $2 million or more. 

But in the blunderbuss approach taken, the result quite simply is a mess. The Abbott government has imposed a great big new tax (in effect) on many sellers of property. This is why:

  1. If someone wants to sell taxable real estate worth $2 million or more, the purchaser MUST withhold 10% of the gross sale price at settlement UNLESS a clearance certificate issued by the ATO has issued saying to the effect that the seller is not a foreigner. Imagine you don't have the certificate, but you have sold a property worth $2.1 million, and have borrowings of $1.8 million. $210,000 has to be retained from the sale- and then sent to the ATO if no clearance has been obtained. The borrower in effect gets nothing until it has cleared through the bowels of the ATO, and in effect has to pay for the costs of the agent's commission.
  2. Yes, you got it. This means a new form for those sales. This also means that a government body that does not get involved actively in sales (unlike land titles, or for that matter, the banks) now is a player. Any buyer or seller over the threshold has to make sure that they have that little bit of paper. Imagine not having it. It might cause settlements fall over, in part because buyers can't comply with their borrowing requirements, or because the ATO isn't efficient and can't get the paper turned around quick enough. 
  3. To give an example, a client of mine sought a private tax ruling from the ATO. He was told 30 days to get it issued. The ATO took 6 months! Let's hope they can produce these documents in quicker time, or they will be crashing contracts all over the place. If in doubt, read this statement by the ATO:
    "If the vendor is automatically assessed as an Australian
    resident, a clearance certificate will be issued electronically
    within days of the application being submitted.
    If there are data irregularities or exceptions, some manual
    processing may be required and the clearance certificate
    will be provided within 14–28 days.
    Higher risk and unusual cases may require greater manual
    intervention and could take longer to process."
  4. It gets worse. The law does not just apply to sales over $2 million. It applies to ALL disposal of an entity (like a company or a trust) where the majority of the assets are taxable real estate ( i.e. other than the family home under $2 million, presumably). No value is set. Everything is covered by this: family law property settlements, restructure of deed arrangements (say even possibly with private superannuation funds), deceased estates, mining leases, options for any of that property and on and on it goes. In ALL of those cases, IRRESPECTIVE OF THE VALUE OF THE LAND, it will apply. Just imagine that Bob and Bill are two brothers who have had a bad falling out. One of the things they agree to as part of a deal in the Supreme Court is that Bob will transfer his share in XYZ Pty Ltd to Bill. A value is given of $1. XYZ Pty Ltd is in effect valueless. It owns $400,000 worth of land in the desert near Boulia. XYZ Pty Ltd is mortgaged up to the hilt: it owes the bank $500,000. Before Bob can comply with the Supreme Court order to transfer his $1 share to Bill, Bill must get ATO clearance, which In an indirect case, he can do so by declaration. Otherwise, Bob must withhold, presumably, $40,000 (which of course he doesn't have) to comply with the legislation.

 Some of the obvious issues for disposers  (and corresponding for buyers) are:

1.         whether a clearance certificate, variation or declaration is required;
2.         the necessary timing for applying for and obtaining that certificate
3.         how and when to calculate the market value for the asset or the component of the asset that is taxable Australian property or interests in taxable Australian property;
4.         any GST component of the transfer;
5.         risks to the sellers when the 10% is not given to them or their bank but instead sent by the purchasers to the ATO;
 6. risks of the buyer not sending the 10% on (but still getting the property)
7.         ongoing risks of withholding and other taxes payable to the ATO.
8. what happens if the disposer doesn't get the certificate, variation or declaration in a timely manner? 

And the best part of this mess? It starts on 1 July. So what, you say, that's the beginning of the new financial year, an obvious time for it to start. It is also the day before the Federal election. The Government is in caretaker mode. The ATO CANNOT sort out major issues as to how this is to be applied until after the election, because it has no one from above to make decisions for it, after these changes have commenced. Lucky us. Thank you, Joe.

Monday, 23 May 2016

Queensland Law Society award an Equity and Diversity Award to Harrington Family Lawyers

On Thursday night I had the privilege to receive on behalf of my firm, Harrington Family Lawyers, an equity and diversity award from the Queensland Law Society.

Three awards were handed out by the Society- Large firm- to Clayton Utz (which recognised that it had LGBTIQ staff members and decided they should be made to feel welcome), Small firm- Miller Harris in Cairns (as 40% of their staff are on flexible work arrangements) and Harrington Family Lawyers- for the small legal practice initiative.

I had previously been told by President Bill Potts:

"The Society found your firm's leadership of the profession in promoting the rights of women and of LGBTI people particularly impressive. In particular, your penning of the Australian Gay and Lesbian Law Blog represents strong and pioneering commitment to the rights of and interests of LGBTI people in Australia ( and doubtless, internationally)."

At the awards ceremony, Bill Potts said that I was "hardworking" and an "ornament".

I said that I had to change my speech in light of events earlier that day. I had been told by a trans woman that allegations were being made of her (i.e. place a child at risk simply because of who she was) that took me back to 1992, when I acted for lesbian mothers, who were often discriminated against, due to their sexuality. It seemed that at some level we had not moved on after all these years.

I also said that when I took my oath of office as a solicitor all those years ago, I was determined to ensure that the law served others- so that the potential of the law- i.e. that all were equal under the law, was able to be met.

Bill Potts said that he hoped for the day that equity and diversity awards were not necessary, because society and the practice of law is fair.

The award comes at a time that I have been nominated for the LGBTIQ Activist of the Year in Queensland. Who is chosen as Activist is based on voting. I am the current Activist of the year.

Wednesday, 27 April 2016

Thank you everyone! Over half a million page views!

Thank you everyone who has viewed my blog. Ever since it kicked off a few years ago, my Australian Divorce Blog has continued to attract visitors.

According to Google, the blog has had 546, 298 page views.

When I started the blog, I would never have imagined that over half a million people would ever look at it. Never in my wildest dreams! But there it is. Thank you.

If there is anything you think that I should be talking and posting about, and am not, please call me on 07 3221 9544 or email me or contact me on my Facebook page or contact me on Twitter.

Will the real "parents" please stand up?

Almost every day, I have to advise clients about whether they are or they are not parents under the Family Law Act. Sometimes this is because they have undertaken surrogacy, or because they have had IVF. It was always so simple before the rise and rise of IVF, and the rise of surrogacy!

Many clients think that they are the parents of a child under the Family Law Act, when they are not. Some think that they are not parents under the Family Law Act when they are. According to different judges some people may be parents under the Family Law Act, but the same category of people according to other judges are not parents under the Family Law Act.

Confused? You're not alone.

Now it is thoroughly confusing about who is and who isn't a parent when they have had IVF and surrogacy. Some things still remain simple: if there has been IVF and they're a couple (but there's no surrogacy), then genetics or not they're the parents. If a surrogacy order has been made under State or ACT legislation, then they're also the parents for all purposes under Australian law.

However, that's where the easy bits stop. Many clients are naturally concerned about whether or not they are considered to be parents because of legal issues, such as:

  • possible effects on citizenship or passports
  • whether or not the child inherits
  • parenting presumptions under the Family Law Act when couples split up (including issues to do with the abduction of children under the Hague Child Abduction Convention)
Please excuse the technical talk, but here is a potted guide to some recent views by Family Court judges about who is and who is not a parent:

  • 2011- those who go overseas for surrogacy are probably not parents,  because the State and Territory laws say that the woman who gave birth is the parent, and her partner (male or female) is the other parent, and these laws, although designed for donor cases, might apply to surrogacy. Also they may not be parents when they come from places which make it illegal to go overseas for commercial surrogacy,(such as Qld, NSW and the ACT) because the law should not be encouraging illegal acts. With one of the couples where the judge questioned whether the parties were parents, the man was found to be a parent by another judge some months before( they had had two cases running to court concerning children born from surrogacy).
  • 2012- a man who is a sperm donor in an overseas surrogacy arrangement is a parent under the Family Law Act, and therefore, the State law is overridden (which provided he was not a parent).
  • 2013- the "reality" of parenting and the inclusive definition of Western Australia's Adoption Act about who is a parent means that both of a gay couple who went to India for surrogacy are parents.
  • 2013- a man living in South Africa and recognised for surrogacy as a parent there is a parent here.
  • 2013- on a tentative basis, the Family Law Act and State and Territory laws form a scheme, so that who is and is not a parent is determined (generally) by State and Territory laws, which means the birth mother and her partner are the parents, and  the intended parents, aren't, and that the same judge's conclusions to the contrary in 2012 were probably wrong.
  • 2013- a known sperm donor to a single woman is a parent under the Family Law Act because he isn't excluded (as might have been the case if the woman were in a de facto relationship or marriage) as a parent, and he is biologically and intended to be the parent. The categories of who is a parent are open and can be decided in each case. The Family Law Act therefore overrides State law which provided that only the woman was a parent.
  • 2014- an intended father under an Indian surrogacy arrangement is the parent under the Family Law Act, and the 2013 tentative decision while applying in New South Wales (and by implication Queensland and the ACT) does not apply in Victoria (and by implication Tasmania  and the NT, and possibly SA and WA) because in Victoria it is legal to go overseas for commercial surrogacy, but it is illegal in NSW.
  • 2015-  a married couple asked the Family Court to be declared to be the parents of a child. They had gone to India for surrogacy. The judge refused to make the parentage declaration because, he said, he did not have the power to, but in any case the man (who was the genetic father) was the father but the woman (when they had an egg donor) was not. His Honour said that the State Act did not apply, because it was hardly relevant to the matter- when the child was born overseas.
  • 2016- in the Baby Gammy case, the judge said that the intended parents were not parents because the parenting presumption for a couple  under the Family Law Act did not apply to surrogacy, but the State Act meant that the surrogate was a parent (and therefore so was her husband). His Honour was of the opinion that the 2013 Western Australian case was wrongly decided, and that intention was never the test of who was or wasn't a parent under the Family Law Act. Curiously, the test under the Family Law Act about a couple undergoing IVF was essentially the same as that under the State Act. His Honour took the view that the law that applied as to who the parents of the child were was the law of Australia, not the law of Thailand, where the child was born.
The sooner we either have the Full Court of the Family Court of Australia determine, definitively, who is or is not a parent and whether the Family Law Act or State and Territory legislation prevails, or the sooner we have the Commonwealth Parliament make laws to determine this issue (as was recommended by the Family Law Council), the better.

Our children have, according to the International Convention on the Rights of the Child a right to an identity. Children are being conceived and born and placed in families where all understand that the people caring for the children are the parents- but our laws (or at least the interpretation of those laws) has meant that those families are unclear as to whether the law recognises them as families. More importantly, children are being denied their identities.  The sooner the law is cleared up, the better.

The cases are also illustrations as to why the sooner the Hague Conference on Private International Law (of which Australia is a member country) is keen to have a convention not just on international surrogacy, but on all private international rules concerning children. The working group when it met at The Hague earlier this year was of the view that the most important issue was to make sure that the status of children moving between countries is certain, i.e., who are their parents, what is their fundamental identity as human beings. The sooner the Hague has a convention covering these issues, and helps parents (and more importantly their children) have certainty, the better.