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.

Baby Gammy judgment delivered

Just over a week ago, Chief Judge Thackray of the Family Court of Western Australia delivered the Baby Gammy judgment. Or to put it more accurately, delivered the Baby Pipah judgment.

You remember the story. Mr Farnell (a convicted sex offender) and his wife went to Thailand to have a child via surrogacy, and ended up with twins. During the pregnancy they discovered that the baby boy had Down's Syndrome and, so the story goes, demanded that the surrogate, now known as Mrs Chanbua, abort the boy. When the children were born, bay Gammy, the boy and baby Pipah, the girl, the Farnell's then demanded that the surrogate keep baby Gammy and they took baby Pipah back to Australia.

The Farnell's then commenced court proceedings in Australia. Horrified that Mr Farnell was a convicted sex offender, Mrs Chanbua asked the court that both Gammy and Pipah live with her in Thailand.

Then in 2015 Mr and Mrs Farnell tried to raid the trust fund set up to protect Baby Gammy- so again the story goes.

Mrs Chanbua was unsuccessful.

Chief Judge Thackray found that some parts of the story were simply untrue. It turns out that Mrs Chanbua was underage and falsely put her age up to be a surrogate. The Farnell's were horrified that Gammy had Down's syndrome- but part of their shock was that the clinic left it very late to test. They did not seek Mrs Chanbua to have an abortion. They couldn't in Thailand. They were told that they could have an abortion in China- as doctors will doanything for money in China, apparently, but they did not seek for there to be an abortion in China.

They did not demand that she keep Gammy. They wanted both children. Instead, Mrs Chanbua loved the idea that she was having a boy growing inside her- and wanted the boy. At the time of the children's births, riots were happening in Bangkok on a daily basis. There was chaos. This was in the period leading up to the coup. Mr and Mrs Farnell were told to get out of Thailand for their safety. They fled Thailand, taking Pipah with them.

Back home they pretened that Gammy had died. The grief was too much to bear.

They started court proceedings, and said, falsely as too many parents do of children born from donor genes, that the child was genetically theirs. In fact, Mr Farnell was genetically the father, but an anonymous egg donor was the genetic mother.  They wanted Pipah to have a "normal" life.

His Honour also found, in painstaking detail, that there was no truth to the story that the Farnell's sought to grab their hands on the loot. Quite simply, they didn't. It was a beat up.

The result to me was not a surprise. The reason was obvious. Pipah was living with the only people she knew, in Bunbury, Western Australia, speaking English, not living with someone she didn't know speaking Thai in Thailand.

In Bunbury she was likely going to be protected from the prying eyes of the media. In Thailand she would probably be the subject of media intrusion as a "celebrity".

In August/ September 2014 when the Baby Gammy saga burst into view, Western Australia's child protection authorities, under the full glare of the world's media camped out on the front lawn, went to the Farnell's home. Since that time the Department did not take Pipah from the care of the Farnell's. Their conclusion- counter-intuitively- was that Mr Farnell was low risk. The judge examined a large amount of evidence and came to the same conclusion- but with the qualifier that there would be 3 monthly and surprise checkups from authorities with the Farnell's to help make ensure that Pipah was safe.

The case is an example of there not being an unacceptable risk. Here there was a risk to Pipah of being in the Farnell's care, but it was found to be low risk. 

From a legal point of view the case is interesting because his Honour expressly rejected the doctrine of intention as to who can be a parent. This runs counter to some other recent cases in the Family Court. His Honour also found that a provision of the Family Law Act that said that if a couple underwent IVF (no matter whose genes were used) or similar procedure they were the parents did not apply to surrogacy. In other words, the surrogate and her husband would not be the parents because they never intended to be the parents. His Honour then relied on State law to determine who were the parents, but here the woman who gave birth was therefore presumed to be the parent.

Yes, I am still trying to figure that out.

What the decision does mean is that the current uncertainty about who is and who is not a parent under the Family Law Act for those undertaking surrogacy overseas is even murkier, if that is possible, than before. His Honour disagreed with a decision in Western Australia by Justice Crisford in 2013 whereby her Honour found that a gay couple were in reality the parents of children born overseas through surrogacy. His view was that decision was incorrectly decided- meaning that those seeking to rely on the adoption provisions of WA law for their overseas surrogacy ought to think again.

An unusual feature of the case was that unlike the usual anonymity, the court revealed the full details of the case, including the names of the parties and that of the children. In a sense, how could it have been otherwise? The Baby Gammy saga had been played out in the world's media. I remember being interviewed by more media that I could count, including NZ radio, Fuji TV, Deutsche Well, the New York Times and the Wall Street Journal, as well as pretty well all of the local media. Quite simply, if his Honour did not reveal all, then the truth would not have been exposed and there would have been accusations of a coverup.

Hopefully for these young children, this will be an end to the media camped out on their lawns, harassing members of family, all trying to emulate Evelyn Waugh's Scoop and get the elusive prize for journalism. Hopefully for these children, they can now lead a normal life.

Tuesday, 26 April 2016

Calling all people stuck in the Family Law Courts queue: if you're in Queensland

I have lost count of the number of lawyers and social commentators, starting with the chief of the Federal Circuit Court of Australia, Chief Judge John Pascoe, who have decried the delays in the Family Law Courts- the Family Court of Australia and the Federal Circuit Court of Australia.

Quite simply, there aren't enough judges, and delays in going to court are getting worse. Some of my colleagues have said that the system is close to collapse.

There is nothing quite like appearing before a Federal Circuit Court judge who explains the horrendous delays, and then seeing the horrified mums and dads who worry about their kids. I have heard one judge say, several times, something like: "Look, I don't like the delays. We don't have enough judges. I have had to move around the country filling in for judges who are sick. If you want to fix the problem, go and speak to your local Federal member."

Well now the Queensland Law Society wants to fight back. Quite simply the President of the Society, criminal lawyer Bill Potts has heard enough. The Society has employed a journalist, Tony Keim. Tony is a qualified lawyer who many years ago decided that he would rather be a journalist- but then wrote many stories to do with the law.

If you are from Queensland or you have a case before the Family Law Courts and you are thoroughly cheesed off about how slow the court process is, please contact me: by email or 07 3221 9544 and I'll put you in contact with Tony Keim so that you can tell your story.

If there is one thing I know about politicians- they listen to people's stories. It's easy to hear lawyers complain on behalf of their clients and say:"Well, they're from the big end of town. Lawyers always complain. What's new?" But for a dad to complain that he is only getting supervised time with his kids, without the benefit of being heard at a trial, and then waiting FOREVER, politicians and the media listen to that stuff. Or a mum who feels that no one has listened to her case, and she is doing it tough waiting for a property settlement because her ex won't play ball.

Of course there will be limitations with what can be told. There are secrecy provisions of the Family Law Act which will mean there will need to be some anonymity- but the media love powerful stories. If you have been stuck in the queue for far too long, despairing when a court will ever listen to you, please call or email me and I'll put you in contact with Tony. You deserve to be heard.