Saturday, February 26, 2011

Family Court allows de facto adoption by a lesbian couple

The Family Court yesterday allowed the de facto adoption by a lesbian couple of a 9 month old Torres Strait Islander girl. The couple were not Torres Strait Islanders.

Newly appointed Justice Forrest, in one of his first decisions, found that it was in the best interests of the baby that she live with the couple and that they have parental responsibility. The orders made were with the agreement of the mother. The father of the child was unknown. At the time of conception, the mother had been extensively partying and drinking and had had a number of unknown sexual partners. before he was prepared to make the orders, Justice Forrest insisted on the mother obtaining independent legal advice (which she obtained) and her setting out on oath why the father was unknown. If the father were known, then he ought to have been told of the court case.

When the mother was 3 months pregnant, she decided that she did not want to keep the child, did not want to have an abortion, did not want to adopt to an unknown family through the child welfare authorities, but wanted to have her child grow up in a  loving family. She had known of the lesbian couple for many years and considered that they were that family. The couple then agreed to care for the child and raise her as if she were their own, provided that she was aware of and was proud of her Torres Strait Islander culture, that she could be aware of who her mother was, and if her father were ever discovered, to have contact with him.

Informal adoptions of this kind are well known in Torres Strait Islander culture, being known as Kupai Omasker.

Shortly after birth, the mother contacted the couple again, and asked them to come and take her child. They did so, and continued to care for the child from that day. The mother chose not to see the child, except for the purposes of an assessment by a social worker, who said that the proposed care of the child by the couple was in the child's best interests.

Red tape came into it, however. Because there was no order to say that the child was in their care, until the order was made, the child was not entitled to be on the couple's Medicare card.

The couple wanted to adopt the child, but because of Queensland's red tape, they could not. Here were their four options:

   1. Adopt
They couldn't, because the Adoption Act Qld says they can't. The Adoption Act Qld specifically discriminates against same sex couples, something that politicians said at the time was in the "best interests of children" as I have blogged before.

    2. Go to the Supreme Court for an adoption

In legal theory, the couple could have gone to the Supreme Court of Qld and tried to use its inherent power (the power it has had since ancient times being a superior court of record), what is sometimes called the parens patriae jurisdiction, to allow the adoption. Great for lawyers, not for clients. While in theory the Supreme Court would have the power to allow the adoption, there is some doubt when the Adoption Act covers the field, specifically discriminates against same sex couples, and the same Department that upholds that Act, the Department of Communities (Child Safety Services) would have to be a respondent to the adoption application.

    3. Get the Department of Communities (Child Safety Services) obtain a child protection order naming the couple as long term guardians

This was an obvious choice, but the Department wasn't interested. The couple reported the matter to the Department. The Department considered it a private matter.

4. Go to the Family Court

Although this was the option of last resort, it was in effect the only legal option open to the couple.

Information: I and my colleague Karen Gough acted for the couple. The case is unreported. I will blog about the case further once the judgment shows up online.

Federal Magistrates Court: lesbian co-mother is a parent

The Federal Magistrates Court recently decided, in a still unreported case, that a lesbian co-mother was a "parent" within the meaning of the Family Law Act. The case, in which I was the independent children's lawyer, concerned the welfare of a young boy. Each of the mother and co-mother sought that he live with her. Ultimately Federal Magistrate Purdon-Sully found that it was in the best interests of the boy that he live with his natural mother.

At issue in a legal sense was whether the co-mother was a "parent" within the meaning of the Family Law Act to the boy. There were three further dynamics in the case:

  1. in Qld, since 1 June 2010, it was possible for the co-mother to be named on the birth certificate as a "parent". This is because of amendments to Status of Children Act Qld that the co-mother is presumed to be a parent for Queensland law, and the donor is not a parent for Qld law. The Births, Deaths and Marriages Registration Act Qld allows for the registration of the co-mother as a parent. That Act only allows two parents to be shown on the birth certificate. Although the child was born before 1 June, 2010, the provision still applied to him. The court found that Queensland's law was not yet a law prescribed for the purposes of the Family Law Act. Therefore Queensland's law did not make the co-mother a "parent" within the meaning of the Family Law Act. At issue was whether or not the mother should be ordered to name the co-mother on the birth certificate.
  2. the co-mother's counsel was critical of the mother for taking steps to minimise the role of the co-mother- as he said that the mother acted in the belief that her being a mother was in effect superior to the role of the co-mother. The co-mother's counsel said that the child had two mothers. The mother was quite clear that she was the mother, and that while the co-mother's role was valuable, only the mother was the mother.
  3. how was conception to be found? What role ought there be for the anonymous sperm donor father? The Family Law Act required that for the co-mother to be a "parent" within the meaning of section 60H of that Act, conception must have occurred at a time they lived in a de facto relationship, must have been artificial conception, and must have been with their consent. The consent of the sperm donor had also to be shown. Where was the evidence of that? Each of the parties agreed that conception was artificial, but the question was raised about what evidence there was about the father. If the father were not an anonymous sperm donor, then he ought to be given notice of the court proceedings and joined as a party. If there was no evidence about his consent (there was not), then there could not be a finding that the co-mother was a "parent". All parties considered that the co-mother was a "parent" within the meaning of the Family Law Act.
Issue 1

Ultimately the co-mother did not seek that the mother ought to be ordered to name the co-mother on the birth certificate. The mother's position was that once the child turned 18 he would be entitled to find out who his father was. She wanted to leave the name of the other parent open on the birth certificate, so that if and when he turned 18 he could name his father on the birth certificate.

The mother's counsel also pointed out to the boy potentially being discriminated against in a variety of ways if and when he would have to produce his birth certificate if a potential employer or other person saw that for  two women's names were on the certificate as his parents.

Although the co-mother did not press to be named on the birth certificate, her counsel was critical of the mother for not recognising the key role of the co-mother in the boy's life as the other parent.

Her Honour found that the mother was acting in the best interests of the child on this point, by leaving open the possibility of the father later being named.

Issue 2

Was the mother being less than child focussed and diminishing the role of the co-mother? Her Honour found that this was not the case.

Issue 3

This issue was cured by agreement of counsel for the three parties and with the court's approval. A letter was obtained from the clinic. It stated categorically that the child was conceived by artificial conception, and that the father was an anonymous sperm donor identifiable only by number, and that his confidentiality, subject to when the child turned 18, remained intact. It stated that the father consented to the procedure.


Her Honour noted that although there was doubt about the drafting of section 60H of the Family Law Act, found that the co-mother was a "parent" of the child within the meaning of the Family Law Act.

I will write an updated post once the judgment is posted online.

Family Court: lesbian co-mother is a parent

The Family Court recently decided that two lesbian co-mothers were "parents" within the meaning of the Family Law Act. It did so in the context of a case where a lesbian couple had had two children: one each. One woman had a child by a known donor. The other woman by an anonymous donor. The woman who had the child by the anonymous donor sought to relocate the child interstate. She was ultimately successful.

At issue was whether each of the co-mothers were "parents" of the other child. If each were, then certain presumptions applied under the Family Law Act.

Justice Cronin stated in the case, Halifax and Fabian:

Much of the judicial history about “relocation” cases has focussed on heterosexual parents where biological connection was clear. This case highlights the reality rather than the abstract of a breakdown of a same sex relationship into which had been born children by artificial conception procedures to two different mothers.

In a recent paper to the National Family Law Conference in Canberra 2010 titled “Outside the Nuclear Family – Children’s Outcomes and Experiences in Same Sex Families” the author clinical psychologist Catherine Boland said:
In many lesbian families there is a conscious avoidance of language that makes distinctions around biology. Unfortunately research that looks specifically at the role of the co-mother, the child’s attachment to her and the strengths and challenges of this role, is still in its infancy.
Very little research specifically examines experiences where women in a lesbian couple each have a pregnancy or multiple pregnancies and yet this seems to be an emerging variable of importance and certainly seems to be a typical pattern of family formation.

Notwithstanding the complexities of the nature of the relationship between children in a same sex household who are not biologically connected, the principles for the determination of such a dispute remain the same; that is, the best interests of the children is the paramount, but not the only consideration. 

His Honour found that each of the women was a parent of both children:

Until the amendment to the Family Law Act 1975 (Cth) (“the Act”) commenced in November 2008, there was considerable judicial comment about who was a parent (see Simpson and Brockmann [2010] FamCAFC 37; Mathers & Mathers [2008] FamCA 856). The amendment to s 60H by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) referred to children born before November 2008. Section 60H(1) provides that where a child is born to a woman as a result of an artificial conception procedure while a de facto partner of another person, and that other person has consented to the procedure, the child is a child of both. While the reference to the consent of the procedure is vague, s 60H(5) places the onus to refute the consent on the person asserting no such consent. None of that has been suggested here. In this case, none of the constituent elements was disputed. Thus each of Ms Halifax and Ms Fabian is a parent of both children.

This case is one I have previously blogged about. The matter had previously been in the Federal Magistrates Court, where her Honour Federal Magistrate Purdon-Sully found that the known donor and his gay partner although not "parents" within the meaning of the Family Law Act were persons concerned with the care, welfare and development of both children and therefore could go to court as they had formal standing to pursue a case. The men were not participants in the case before Justice Cronin.

Monday, February 21, 2011

NSW Surrogacy Regulations published

The NSW Government has released the Surrogacy Regulations, which are to commence when the NSW Surrogacy Act starts on 1 March.

The first issue is the transitional provision, to cover those people who before 1 March 2011 signed a contract with overseas commercial surrogacy clinics. It provides:

Transitional—section 11
(1)  Section 11 of the Act [The criminal offence for entering into a commercial surrogacy arrangement whether in or out of NSW]   does not apply in respect of any act done outside New South Wales by a person in connection with a surrogacy arrangement or proposed surrogacy arrangement if the person engaged a surrogacy service provider before the commencement of the Act to arrange the surrogacy arrangement.
(2)  A surrogacy service provider is a person who arranges surrogacy arrangements for fee or reward.
(3)  A surrogacy service provider is engaged by a person when a written contract is entered into between the person and the surrogacy service provider under which the surrogacy service provider agrees to arrange a surrogacy arrangement for or on behalf of the person.
(4)  This clause does not affect any liability for an offence under Part 4 of the Assisted Reproductive Technology Act 2007 in respect of acts done before the repeal of that Part.
Note. Section 11 of the Surrogacy Act 2010 extends the jurisdictional nexus for offences relating to entry into, and advertising of, commercial surrogacy arrangements. As a consequence of that provision, the offences extend to acts done outside New South Wales by persons who are ordinarily resident or domiciled in New South Wales. Although similar offences existed under the Assisted Reproductive Technology Act 2007 before the commencement of the Surrogacy Act 2010, those offences did not have the same extended application to acts done outside New South Wales.

The concerns I raised in yesterday's article about the risk of prosecution for acts which have an effect in NSW before 1 March 2011 remain. 

A further issue that seems obvious to me is that the NSW Parliament makes plain that to commit a certain act after the commencement of the Act, ie it is an offence from 1 March  to enter into a commercial surrogacy arrangement including one outside NSW. The Regulations attempt to say that in certain cases an offence may not have been committed. While the regulation is a political fix for a law that quickly became controversial, it is questionable whether the transitional regulation is valid. A regulation is what is called delegated legislation. The power of delegation should not exceed the power of the Parliament in the first place. It is questionable whether the regulation exceeds that power of delegation.

Now for the red tape

When NSW Attorney-General John Hatzistergos announced that NSW was going to have a scheme to allow parentage orders, he said that he was going to copy the Qld surrogacy laws. In many ways he has, but for those people who live in NSW and have an interstate surrogacy arrangement (or outside NSW but one of the parties is in NSW) great care needs to be taken to ensure compliance. Special care needs to be taken to ensure those providing counselling or preparing reports meet the specific requirements of that State. For interstate arrangements, care needs to be taken to ensure compliance with one State or the other, or in some cases both.

Here is an example of unnecessary red tape and inconsistency between the states. I have used NSW and Qld only as a comparison because of the words by Mr Hatzistergos. It is just an illustration of why it would have been better to have uniform legislation.

Before the surrogacy arrangement is signed

The NSW Surrogacy Regulations provide that a counsellor who sees the parties before the surrogacy arrangement is entered into must be a member (or eligible for membership) of the Australia and New Zealand Infertility Counsellors Association and follow the surrogacy guidelines issued by ANZICA and the National Health and Medical Research Council.

If the counsellor is an experienced social worker or psychologist, that's not enough- the counsellor must be a member of ANZICA. "Eligible for membership" might mean that all is required is that the person is a social worker or psychologist, but to be able to join, not only must the person have those qualifications, but they must also be approved for membership. Therefore, a person who is either a social worker or psychologist might not be eligible. If this requirement is not met, then the appropriate counselling will not have occurred before signing, potentially dooming the chances of obtaining a parentage order.

In Qld, the counsellor who can see the parties before the surrogacy arrnagement is signed is much wider:

A) a member of the Australian and New Zealand Infertility Counsellors Association;
(B) a psychiatrist who is a member of the Royal Australian and New Zealand College of Psychiatrists;
(C) a psychologist who is a member of the Australian Psychological Society;
(D) a social worker who is a member of the Australian Association of Social Workers

Counselling after the birth

In NSW, the birth mother and her parent are required to have more counselling afterwards.  There is no such requirement in Qld. This counsellor for the NSW Surrogacy Act need not be a member of ANZICA, but must :

(a)  hold a qualification conferred by a university (whether within or outside New South Wales) after at least 3 years full time study or an equivalent amount of part time study, and
(b)  be a qualified psychologist, qualified psychiatrist or qualified social worker, and
(c)  have specialised knowledge, based on the person’s training, study or experience, of the social and psychological implications of relinquishing a child.

The court report

To enable a parentage order to be made, a report is obtained from an independent expert. In NSW, the requirement is that the expert must:

(a)  hold a qualification conferred by a university (whether within or outside New South Wales) after at least 3 years full time study or an equivalent amount of part time study, and
(b)  be a qualified psychologist, qualified psychiatrist or qualified social worker, and
(c)  have specialised knowledge, based on the person’s training, study or experience, of the social and psychological implications of relinquishing a child.

In Qld, the requirement is that the expert is:

 a person who--
(i) is one of the following--
(A) a member of the Australian and New Zealand Infertility Counsellors Association;
(B) a psychiatrist who is a member of the Royal Australian and New Zealand College of Psychiatrists;
(C) a psychologist who is a member of the Australian Psychological Society;
(D) a social worker who is a member of the Australian Association of Social Workers; and
(ii) has the experience, skills or knowledge appropriate to prepare the report.

Sooner or later intended parents will trip up on the difference in the red tape, emphasising the need for good legal advice from a lawyer specialising in surrogacy, like me. The differences in red tape mean higher unnecessary costs for clients, delays and possible failure of a parentage order application because of a failure to strictly comply with red tape. Some of these problems could have been avoided if the same provisions had been adopted in each State.

Sunday, February 20, 2011

Sydney Surrogacy Forum 28 February

Community organisation Australian Families Through Gestational Surrogacy will be holding a surrogacy seminar in Sydney on the night of 28 February, the eve of the commencement of the new NSW Surrogacy Act. I am privileged to be one of the speakers. Notable speakers include:

  • Noted legal academic Professor Jenni Millbank from UTS
  • David Shoebridge from NSW Greens
  • Hopefully, NSW Attorney-General John Hatzistergos
  • Parents of children born through gestational surrogacy

Place: Lyceum Theatre, Wesley Conference Centre, 228 Pitt St, Sydney
Date: Monday 28 February
Time: 6pm to 7.45pm
Cost: Free
All welcome

Enquiries: Sam Everingham          1300 307 447

NSW surrogacy laws start 1 March

The NSW Surrogacy Act commences on 1 March, 2011. There are two significant changes:
  1. For the first time, NSW will have a scheme in place to allow parentage orders to be made. There is a misconception that NSW has now legalised altruistic surrogacy. NSW has always allowed altruistic surrogacy, but now there is a requirement, like the ACT and Qld for a surrogacy arrangement to be entered into, compulsory counselling and legal advice before the arrnagement is signed up, and certain steps to be taken after the child is born and handed over before a parentage order can be made.
  2. NSW will now clearly be banning those from NSW engaging in commercial surrogacy anywhere else in the world. NSW has taken a similar approach to Qld and the ACT, but the reverse of Victoria.
The NSW Attorney-General John Hatzistergos has issued a press release:
The Surrogacy Act 2010 will commence on 1 March 2011.
The Act makes it an offence for NSW residents to enter into commercial surrogacy arrangements overseas. However, regulations to be made under the Act will include an exemption for people who have, before the Act commences on 1 March 2011, entered into a written contract with an overseas clinic or agency for the clinic or agency to arrange a commercial surrogacy. Anything done overseas in connection with such arrangements, whether before or after 1 March 2011, will not be subject to the change in the law. This includes future contracts with the surrogate mother arising out of the original agreement with the clinic or agency.

This exemption recognises that people may have made a significant investment in a commercial surrogacy process before the Act commences and seeks to avoid an unfair disadvantage for people in this position.

, any person considering entering into in an overseas surrogacy arrangement before 1 March 2011 should also consider the effect of the existing Part 1A of the Crimes Act 1900 (NSW). Part 1A provides that actions done overseas could be an offence under NSW law where they are prohibited by NSW law and where the action would “have an effect” in NSW.

Those affected by the Surrogacy Act 2010
may wish to seek legal advice about its impact on their individual circumstances.

Those in NSW contemplating overseas commercial surrogacy are in a bizarre place between now and 1 March:

  1. According to the press release, if they sign up an overseas commercial surrogacy agreement now, they commit an offence in NSW. The legal argument contained in the press release is that if an act is done outside NSW which although not an offence in that other place is an offence in NSW and has an effect in NSW, then it becomes an offence in NSW. Currently it is an offence under the Assisted Reproductive Treatment Act to engage in commercial surrogacy in NSW. If a person were to enter into the commercial surrogacy agreement outside NSW but there is an effect in NSW, such as the payment of money to the overseas jurisdiction, or bringing the child back, then an offence occurs in NSW. If this were the case, why was the press release issued, and why do people need to get legal advice? Itis of course wise for anyone in this position to get legal advice.
  2. If they don't sign up before 1 March (and therefore avoid the theoretical risk of being charged), the person will not be eligible to be exempt from being charged after 1 March. In other words, the government is encouraging people to sing up now, while saying that it might be an offence to do so.
  3. If they sign up now, they do so with the regulations sight unseen. The regulations will not be produced until after the legislation starts next week. The regulations may be proclaimed immediately, or they may take a while. In any case there is no way of judging the regulations as they have not been published.
  4. The regulations may never be proclaimed. Therefore someone might sign up now and possibly expose themselves to prosecution, but never get the benefits promised in the press release. Essentially, it goes like this. NSW is to have a state election on 26 March. NSW moves into caretaker mode on 4 March, at which time the government will not be proclaiming any regulations, except with the consent of the Opposition and other parties. Unless the regulations are proclaimed by the Governor-in-Council between 1 and 4 March, 2011, they will not be proclaimed until after the election. It will then be up to the new government, almost certainly a coalition government, to decide as to whether it wants to put the regulations in place. it may simply choose not to. Nothing the Labor government has decided on that point is binding.