Wednesday, July 4, 2018

Amendments to the Marriage Act and fertility law update


In May I presented to the annual Legal Aid Queensland conference about amendments to the Marriage Act, as well as a fertility law update. Here is my paper: 

AMENDMENTS TO THE MARRIAGE ACT 1961 plus fertility law updates

Legal Aid Queensland seminar


24 MAY 2018

Stephen Page[1]


1.            The prevailing view in family law

The prevailing view in family law, as expressed by a Federal Circuit Court Judge last year on the panel which I was also on, was that the amendments will make no difference whatsoever in family law.  Of course now we have the Marriage Amendment (Definition in Religious Freedoms) Act 2017 (Cth) which in general took effect on 9 December 2017.  They effect changes not only to the Marriage Act 1961 (Cth) but also to a whole host of other legislation including the Family Law Act and portfolios in defence, employment, finance, immigration and border protection, veterans affairs and the role of Attorney-General. 

The effect of the amendments has been:

(1)   To allow equal marriage laws to adults, if they are two people, irrespective of gender;

(2)   Overseas marriages that were entered into on or before 9 December 2017 (such as mine) are automatically recognised because of the effect of the definition of marriage being amended in section 5 and therefore having a flow on effect for the recognition of foreign marriages under section 88D. 

The other major change is to allow ministers of religion and religious marriage celebrants to refuse to solemnise marriage if doing so is contrary to their religious beliefs.  Although there has been a change concerning ministers of religion, under the old section of the Marriage Act concerning this issue, they had a blanket ability to refuse to solemnise a marriage.  Now the section is longer, but the ability for ministers of religion to refuse to solemnise hasn’t altered in substance.  There is a new category of marriage celebrants who are religious marriage celebrants, being either ministers of religion or under a grandfather clause had by Friday, 9 March 2018 applied to be recognised as religious marriage celebrants.

2.            Transitional provisions

Schedule 4 to the Marriage Amendment (Definition of Religious Freedoms) Act 2017 commenced on 9 December 2017.  Clause 2 provides:

“(1)   This item applies to proceedings that:

(a)    were pending under the Family Law Act 1975 immediately before the recognition time [i.e. 9 December 2017]; and

(b)    related to a de facto relationship that:

(i)                 existed before or when the proceedings were instituted;

(ii)         was between 2 persons who are parties to a single pre-commencement same-sex marriage solemnised before the proceedings were instituted.

(2)    The proceedings continue under the Family Law Act at and after the recognition time:

(a)     As if they related to a marriage that had been solemnised when the pre-commencement same-sex marriage was solemnised;

(b)     If the proceedings were a de facto financial cause – as if anything done before the recognition time for the purposes of a provision of Part VIIIAB of that Act (except Division 4 of that Part) has been done for the purposes of the corresponding provision of Part VIII of that Act.”

Clause 3 provides:

“(1)   If:

(a)         before the recognition time, an order was made under Part VIII of the Family Law Act 1975 with respect to the maintenance of a party to a marriage; and

(b)         the party later became a party to a pre-commencement same-sex marriage;

(c)         subsections 82(4), (6), (7) and (8) of that Act apply in relation to the order as if the party had remarried at the recognition time.

(2)   If:

(a)        before the recognition time, an order was made under Division 2 of Part 8AB of the Family Law Act 1975 with respect to the maintenance of a party (the receiving party) to a de facto relationship; and

(b)        the receiving party later became party to a pre-commencement same-sex marriage with someone who was not a party to the de facto relationship;

(c)         subsections 90SJ(2), (3), (4) and (5) of that Act apply in relation to the order as if the receiving party had married at the recognition time.”

Clause 4 deals with the recognition of overseas divorces, annulments and legal separations relating to pre-commencement same-sex marriages.  Clause 4 provides:

“(1) To avoid doubt, subsection 104(3) of the Family Law Act 1975 extends to a divorce, annulment or legal separation relating to a pre-commencement same-sex marriage, even if:

(a)            the relevant date (as defined in section 104 of that Act) was before the recognition time; or

(b)            the divorce, annulment or legal separation occurred before the recognition time.

(2)   The Family Law Act 1975 applies as if section 104(3) of that Act also provided for a divorce effected in accordance with the law of an overseas jurisdiction to be recognised as valid in Australia if the divorce related to a pre-commencement same-sex marriage and was effected before the recognition time.

(3)   For the purposes of the application of section 104(4) of the Family Law Act 1975 in relation to subsection 104(3) of that Act as it applies because of sub-item (2), the mere fact that the divorce relates to a pre-commencement same-sex marriage does not mean that recognition of the divorce would manifestly be contrary to public policy.”

Clause 5 deals with financial agreements and separation declarations:

“(1)     This item applies if:

(a)              before the recognition time, the parties to a pre-commencement same-sex marriage made a Part VIIIAB financial agreement relating to a contemplated, actual or former de facto relationship between them:

(i)            whether or not they were parties to the pre-commencement same-sex marriage at the time they made the agreement; and

(ii)          whether or not anyone else is a party to the agreement; and

(b)              under section 90UJ of the Family Law Act 1975, the agreement is binding on the parties to the agreement immediately before the recognition time.

 (2)  For the purposes of a law of the Commonwealth (including the Family Law Act 1975) at and after the recognition time, the agreement, with the necessary changes, is taken:

(a)             to be a financial agreement made under Part VIIIA of that Act relating to a contemplated, actual or former marriage between the parties to the pre-commencement same-sex marriage; and

(b)             to be binding on the parties to the agreement under section 90G of that Act until the agreement is terminated or set aside in accordance with that Act.

  (3) However, the agreement is taken not to include a provision that deals with the matter that could not validly have been dealt with in a Part VIIIAB financial agreement, even if the matter could validly be dealt with in a financial agreement.

  (4) Section 90E of the Family Law Act does not apply in relation to the agreement at and after the recognition time if the agreement was covered by section 90UE (agreements made in non-referring States that become Part VIIIAB financial agreements) of that Act before that time [i.e. Western Australia].

  (5) If, before the recognition time, a separation declaration was made, as described in section 90UF of the Family Law Act 1975, for the purposes of giving effect to the agreement (whether a declaration was included in the agreement or not), the declaration is taken on and after that time to be a separation declaration made as described in section 90DA of that Act.

  (6) If before the recognition time, a separation declaration was made, as described in subsection 90MP(8), (9) or (10) of the Family Law Act in relation to the agreement so far as it is a superannuation agreement for the purposes of Part VIIIB of that Act, the declaration is taken on and after that time to be a separation declaration made as described in subsection 90MP(3), (4) or (4A) of that Act.

  (7) Sub-item (6) applies where the separation declaration was included in the superannuation agreement or not.”

Division 3 confers similar matters under the Family Court Act 1997 (WA).

There are other transitional provisions concerning second marriage ceremonies for certain marriages by foreign diplomatic or consulate offices that occurred in Australia before commencement.

Section 113(2) and (5) of the Marriage Act deals with second marriages for people who engaged in a second marriage where their marriage was already solemnised in Australia before 9 December 2017 and the marriage was solemnised in the presence of a diplomatic or consulate officer of a foreign country.

The Commonwealth Attorney-General has the ability by legislative instrument to make transitional rules describing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or appeals made by the Act.  As far as I am aware, so far there have been no such transitional rules.

3.            Is the assertion correct?

Before the amendments, it mattered little whether someone was married or in a de facto relationship both as to parenting matters and property settlement/spousal maintenance.  The latter of course had extra requirements:

·         You had to prove that a de facto relationship was in existence plus the jurisdiction requirement in terms of location.

·         Section 2CA of the Acts Interpretation Act 1981 (Cth) has been amended as to spouse:

“(1)           For the purposes of any act, a person is the spouse of another person (whether of the same sex or a different sex) if the person is legally married to the other person.

  (2)            Subsection (1) has effect in addition to any provision of an Act that affects the meaning of spouse in a provision of that Act.

Example:   Spouse is defined for the purposes of an Act to include a de facto partner and a former spouse. Because of this section, a reference in the Act to a person’s spouse covers any person who is legally married to the person, in addition to any person covered by the definition of the Act.”

There is then a clause 3 in Schedule 3 to the Marriage Amendment (Definition of Religious Freedoms) Act 2017 (Cth) which says:

      “The amendments of the Acts Interpretation Act 1981 made by this Part apply, on and after the commencement of this Part [i.e. 9 December 2017], in relation to Acts enacted and instruments made before, on or after that commencement.”

There are machinery changes to the Family Law Act.  For example, the presumption of the need to preserve and protect the institution of marriage in section 43(1)(a) is changed from “a man and a woman” to “2 people”.  The need to be satisfied about arrangements for children in divorce under section 55A has in 55A(3) changed from “the husband or the wife” to “party to the marriage”, and from “the husband and wife” to “both parties to the marriage” and in 55A(4) from “husband and wife” to “parties to the marriage”.

In section 100 party is treated as a husband, wife or spouse even if the marriage or the adoption occurred before the commencement of the relevant sections 55A, 60F, 98A or 60E. 

4.            Religious Freedom Review

A consequence of the Marriage Act debate was that the Government appointed a Religious Freedom Review Expert Panel, chaired by Philip Ruddock, to examine whether Australian law adequately protects the human right to freedom of religion.

That report was handed to the Government last Friday, but it has not been released to the public. The Government is considering the report and its response before releasing the report. 

5.            State Law

The first point is the obvious one.  People whose marriage has now been recognised are now affected by section 14 of the Succession Act 1991:

“(1)   A will is revoked by the marriage of the testator.

  (2)   However, the following are not revoked by the marriage of the testator:

(a)         a disposition to the person to whom the testator is married at the time of the testator’s death;

(b)         an appointment as executor, trustee, advisory trustee or guardian of the person to whom the testator is married at the time of the testator’s death;

(c)          a will, to the extent it exercises a power of appointment, if the property in relation to which the appointment is exercised would not pass to an executor under any other will of the testator or to an administrator of any estate of the testator if the power of appointment were not exercised.

  (3)   Also –

(a)         a will made in contemplation of a marriage, whether or not the contemplation is stated in the will, is not revoked by the solemnisation of the marriage contemplated; and

(b)         a will that is stated to be made in contemplation of a marriage generally is not revoked by the solemnisation of a marriage of the testator.”

6.            A quick checklist of State family law

There doesn’t seem to have been any problems arising from the amendments to the Marriage Act in the following legislation:

·         Adoption Act 2009
·         Child Protection Act 1999
·         Domestic and Family Violence Protection Act 2012
·         Surrogacy Act 2010

As an example, to have standing under the Domestic and Family Violence Protection Act 2012, there needs to be a relevant relationship, one form of which is a spousal relationship: section 15.  The definition of spouse includes a former spouse of the person and a parent or former parent of a child of the person: section 15(2).

The definition of spouse under the Acts Interpretation Act 1954 includes that of a de facto partner: schedule 1, the latter of course being defined in section 32DA.

7.            Status of Children Act 1978 (Qld)

There is a problem with parenting presumptions under this Act, which needs to be amended in light of the changes to the Marriage Act.  The parentage presumptions contained under the Status of Children Act for children conceived by fertilisation procedures are contained in Part 3:

·           Subdivision 2 – fertilisation procedures for married women with the husband’s consent;

·           Subdivision 2A concerns fertilisation procedures for women with female de facto partner’s consent;

·           Subdivision 3 – fertilisation procedures for other married women and unmarried women.

For a woman who is married to another woman (or someone who is not a man) means that she is now outside subdivision 2A and also falls outside subdivisions 2 and 3.  Subdivision 2 only applies to a woman who is married to a husband (or de facto male partner): section 16.  Subdivision 2A only applies to a woman who has a female de facto partner and undergoes a fertilisation procedure with that partner’s consent or has a female civil partner and undergoes a fertilisation procedure with that partner’s consent: section 19B.  Subdivision 3 only applies if:

(a)           a married woman undergoes a fertilisation procedure other than with her husband’s consent;

(b)          a woman who is not married and does not have a de facto partner or civil partner undergoes a civil fertilisation procedure;

(c)           a woman who has a de facto partner undergoes a fertilisation procedure other than with their partner’s consent; or

(d)          a woman who has a civil partner undergoes a fertilisation procedure other than with her partner’s consent.

In other words, the parenting presumptions do not apply if a woman who is married to another woman (or someone who is not a man) undergoes a fertilisation procedure either with or without her wife or spouse’s consent (on the basis that her wife or spouse is not her husband).  For example, if a woman has a gender queer spouse, along the lines of Norrie[2] - then the presumption does not apply.

If the woman’s spouse consented to the procedure, then the woman’s spouse would be a parent under section 60H(1) of the Family Law Act 1975, but if the spouse did not consent, then it is unclear whether the spouse might be a parent.

8.            Getting divorced

Fiona Kumari Campbell was the brave soul who took Australia to the UN Human Rights Committee last year because she married overseas to another woman, their marriage ended but she was unable to get divorced.  The UN Human Rights Committee took Australia to task for not allowing Ms Campbell or other people stuck in being unable to get divorced because their marriage was not recognised in Australia and they did not meet the jurisdiction requirements of the overseas jurisdiction where they were divorced.

The amendments to the Marriage Act now enable those people to get married.

9.            Civil Partnerships Act 2011

There will be those who have entered into a civil partnership and have since married (whether overseas or from 9 December).  Section 14 of the Civil Partnerships Act 2011 (Qld) makes plain that a civil partnership is terminated on the marriage of either party.  If they married before 9 December, then the termination date is likely to be 9 December 2017.

There are same sex couples who entered into civil partnerships overseas whose relationship has broken down and were unable to end the civil partnership overseas because they did not meet the jurisdiction requirements there.  Schedule 1 Part 1 of the Civil Partnerships Regulation 2012 (Qld) had a list of 34 corresponding laws covering New South Wales, Victoria, Tasmania, ACT, South Australia and New Zealand but also the UK, various Canadian and American jurisdictions and the matching 34 corresponding relationships, for example “a marriage of 2 persons of the same sex under the Domestic Relations Law of the State of New York (United States of America)”.

On 12 March, by virtue of reg. 8 of the Civil Partnerships and Other Legislation Amendment Regulation 2018 (Qld) this list has been updated so that it only applies to civil partnerships and not same sex marriages. The list has reduced from 34 corresponding laws to 14.

10.        State review of BDM for LGBTI Queenslanders

A review has occurred as to the Births, Deaths and Marriages Registration Act as to how it affects LGBTI people, specifically:
·         Collecting and registering a person’s sex
·         Recording the reassignment of a person’s sex
·         Recording same sex families on the register.
A discussion paper was issued, which can be downloaded[3]. No further developments have happened as yet.

11.        Proposed amendment of s.22 BDM Act

On 7 March the Births, Deaths and Marriages Registration Amendment Bill 2018 was introduced to Parliament. It has not yet passed. It serves only one purpose- to amend s.22 of the Act, to remove the requirement for marriage. Section 22 provides:

“The reassignment of a person’s sex after sexual reassignment surgery may be noted in the person’s entry in the register of births or adopted children register only if the person is not married.”

The effect of the amendment, if passed, will enable transgender people to more easily have their gender marker changed on the birth register without having to choose between divorce and identity.

Many years ago, I obtained a ruling from then Attorney-General Rod Welford that my client, who was a person who sought to change their gender marker who was married outside Australia and lived outside Australia, was not captured by s.22, resulting in the gender marker being able to be altered.

12.        Bigamy

I am aware of a case in the United States where a party entered into a same sex marriage in California.  That marriage broke down.  Subsequently that partner entered into an opposite sex marriage in Arizona.  These events occurred before the US Supreme Court decision in 2015.  A lawyer apparently advised the party that they were free to marry because the first marriage was not recognised in the State of Arizona.  The effect of the US Supreme Court decision meant (as the first marriage had not been dissolved) that from the handing down of that decision, the party had engaged in the crime of bigamy.

Under section 94 of the Marriage Act 1961, a person who is married shall not go through a form or ceremony of marriage with any person, the penalty being imprisonment for 5 years.

Strict liability applies to the physical element of circumstance that the person was married when the formal ceremony took place and there is a reversal of the onus of proof on certain issues upon the defendant.

13.        Fertility law update

I thought that I would present to you today about three recent cases in family law concerning fertility issues, as well as recap about two relatively old cases.

The oldest case first: LWV and LMH [2012] QChC 26[4]

This was the first case in the world to decide when a child was conceived. My submissions that conception was the act of pregnancy were accepted by Judge Clare SC. Why the point needed to be taken was because the child was created from an embryo which was frozen years before the parties entered into a surrogacy arrangement. Section 22 of the Surrogacy Act 2010 (Qld) requires that the surrogacy arrangement be entered into “before the child was conceived” but unhelpfully did not specify what was conception.

Her Honour stated at [7]:

“Whatever approach to statutory interpretation is applied, whether it is to view “conceive” as a technical term, or in its everyday meaning, or the meaning that best advances the purposes the Act, the result is the same. The point of conceiving a child is the commencement of the pregnancy, which involves an active process within a woman’s body.”

Groth & Banks [2013] FamCA 430

This is a case that has thrown IVF clinics into a spin.

Mr Groth and Ms Banks were in a relationship.  They split up.  They had a property settlement.  Some years later Ms Banks told Mr Groth that she wanted to be a mother and wanted his sperm.  He agreed to be a sperm donor.

They went to a clinic and, along the lines of Verner & Vine [2005] FamCa763, they told the clinic that they were a couple.  They weren’t.  Mr Groth signed a form required under Victorian law stating that he wasn’t a parent, but was a donor.

The child was conceived and born.

Mr Groth had no involvement with the child until one day his partner observed messages on his mobile phone.  He then made application to the Family Court seeking declaration that he was a parent.  Ms Banks submitted, not surprisingly, that Mr Groth could not be a parent because under the Status of Children Act (Vic) she was the woman who gave birth, she was the only parent and his role was merely that of donor.

Mr Groth’s argument was ingenious:

·          He was undoubtedly the child’s biological progenitor
·          The word parent is not exhaustively defined in the Family Law Act.

·          By use of its language Part VII of the Family Law Act envisages that there are two parents, that is, the biological progenitors of the child unless they are otherwise displaced by express provisions in the Family Law Act

·          Section 60H does not apply where the mother was not married or in a de facto relationship

·          The Status of Children Act does not apply because section 79 of the Judiciary Act 1983 (Cth) does not bring it into operation and alternatively section 109 of the Constitution provides that the Commonwealth law prevails in the event of inconsistency between the Commonwealth and State laws.

Cronin J accepted this argument.  He declined to rule on the issue of intention namely as to the form required under the State law, saying that it was irrelevant given section 109 of the Commonwealth Constitution.  His Honour stated[5]:

            “(The applicant’s) argument is that the course of conduct leading to the conception of the child is clearly distinguishable from a donor who does not wish to have an involvement in the child’s life.  Concerns of public policy, such as those raised by Guest J in Re Patrick… that unknown sperm donors could be considered ‘parents’ under such an interpretation become irrelevant because the Act does not impose obligations on an unknown person who has donated biological material.

            Thus, the interpretation of ‘parent’ in the Act allows each case to be determined on its particular facts.

            The fact that a child has two parents who are her or his biological progenitors permeates the language of the Act.  The whole Commonwealth statutory concept is outlined in the Part VII of the Act is one in which biology is the determining factor unless specifically excluded by law …

            Part VII of the Act contains multiple references to the parents of the child as ‘either’ or ‘both’.  These can be found at s.60B(1)(a), 60B(2)(a) and (b), 60CC(2)(a), 60CC(3)(d)(i), 61C(2), 65C(a), 66B(2), 66F(1) and 69C(2).  The logical presumption which follows is that the legislature envisaged two parents when dealing with parental responsibility under the Act. 

            The applicant fits that presumption in the Act of who is a parent.  He is the biological progenitor and one of two people who set about a course of conduct with the intention of fathering a child.  On the face of the language in the Act and the facts here, a logical conclusion would be that the applicant is the parent of the child.  If one turns to the sections of the Act that displace biological progenitors as parents, little changes.”


Discussion as to Groth & Banks


It might be seen that the impact of Groth & Banks immediately applies to single women who are relying on sperm donors.

If the test is that of biology and section 60H does not apply, does that mean a single woman who is relying on an egg donor and a sperm donor is not the mother but that a known egg donor could be the mother?  Is it a case of we need to rely on intent?

If a single woman similarly relies on a known embryo donors – are they the parents and she is not?

Was Ryan J correct in Mason & Mason [2013] FamCA 424  in saying that there is a statutory scheme between the Status of Children legislation and the Family Law Act?  There are numerous references in each piece of legislation either directly or by inference to the other, for example in Status of Children Legislation there is a reference to prescribed overseas jurisdictions – but there is no prescribed overseas jurisdiction under the Status of Children Legislation.  The prescription is only under the Family Law Regulations which in turn rely on the Family Law Act.

But the real question is – is this what Parliament intended?  Did Parliament intend someone like Mr Groth to be a parent?  In my view the answer is simple and it is no.  When the amendments were made to the Family Law Act to amend section 60H, Parliament simultaneously amended the Child Support (Assessment) Act.  The bills ran parallel, and as Hansard reveals changes to the Child Support (Assessment) Act were suggested after the relevant Senate committee had considered the ability to recognise lesbian couples (which resulted in the amendment to section 60H).  Section 5 of the Child Support (Assessment) Act was amended in those 1998 amendments and provides in respect of the definition of “parent”:

“(a)        When used in relation to a child who has been adopted - - means an adoptive parent of the child; and

(b)          When used in relation to a child born because of the carrying out of an artificial conception procedure - - means a parent who is a parent of a child under section 60H of the Family Law Act; and

(c)          When used in relation to a child born because of a surrogacy arrangement - - includes a person who is a parent of the child under section 60HB of the Family Law Act 1975.”

Bernieres and Anor & Dhopal and Anor [2015] FamCA 736

Mr and Ms Bernieres lived in Victoria. They undertook commercial surrogacy overseas. It was legal for them to do so. Mr Bernieres was the genetic father. An egg donor was the genetic mother. Mr and Ms Bernieres sought from Berman J a declaration of parentage and parenting orders. The surrogate and her husband did not file a response.

His Honour held that, following the 2012 amendments to the Family Law Act, a declaration under s.69VA was not a parenting order. His Honour found that that the Status of Children Act 1974 (Vic.) was not of assistance because this was an overseas commercial surrogacy, not a domestic one in compliance with Victorian law. S.60HB therefore did not apply.

S.60HB of the Family Law Act allows that if an order is made under a prescribed State or Territory law, then who is a parent under that State or Territory law is a parent under the Family Law Act. S.60HB is the lynchpin of a scheme to recognise children for whom surrogacy parentage orders have been made under State or Territory laws:

·           A parentage order made in the Childrens Court of Queensland under s.22 Surrogacy Act 2010 (Qld) (and equivalent orders/provisions interstate).
·           Prescription of those laws under reg. 12CAA Family Law Regulations 1984.
·           A recognition of those parents and that child by virtue of the prescribed laws under s.60HB Family Law Act.
·           A recognition of the parent/child relationship for citizenship purposes under s.8 Australian Citizenship Act 2007.

His Honour noted that, unlike the situation in Mason and Mason [a NSW case], Victoria did not prohibit overseas commercial surrogacy, and then stated that the Status of Children Act was silent “with respect to the determination of parentage of children born of commercial surrogacy procedures”.

His Honour held that he did not have the power to make the declaration under the section:

“Section 69VA was enacted by the Family Law Amendment Bill 1999 to enable the court to make a declaration of parentage for the purposes of all laws of the Commonwealth, however, I do not consider that s 69VA is the stand alone power but rather requires “parentage” of a child to be in issue in proceedings in respect to another matter.

The construct of subdivision E in respect of parentage evidence appears sequential and provides with some clarity the necessary steps to resolve the parentage of a child. The first requirement is that the parent of a child must be in question and if the court considers that it is in the best interests of the child (as at least one of the relevant considerations) then the order that is made is that a parentage testing procedure be carried out. Section 69W(5) does not seek to effect or limit the generality of s 69V. I accept that the focus is to ensure that the court has a wide discretion in relation to the types of orders that can be made in order to determine the parentage of a child in issue. The reference to “receiving evidence” in s 69VA is directed to determining the biological connection and therefore the parentage of a child.

    Section 69VA is not a stand-alone power but requires parentage of a child to be in issue in proceedings in respect to another matter. The power is limited by the fact that the court can only make a declaration if it finds that a person is a biological progenitor. In McK & K v O [2001] FamCA 990; (2001) FLC 93-089 Mullane J noted in relation to the evidence of parentage:

[s69VA is not a free standing power. It is clearly expressed to be dependent upon there being proceedings before the court in which the parentage of the child is already an issue.
The insertion of section 69VA implies that the parliament considered there was no separate power in the Act at that time to make a declaration of parentage. Section 69VA is the only express power to make a parentage declaration. There is no express power to make such a declaration except in proceedings in which the parentage of the child is already in issue.

Use of the power by the Family Court is limited to situations where the application is incidental to the determination of another matter within Commonwealth power. This can created difficulties for the applicants in circumstances where a parent may be seeking a declaration of parentage for the purposes of obtaining a passport for a child that is not “incidental to the determination of any other matter within the legislative powers of the Commonwealth” before the court.”

His Honour also said that the court did not have an inherent power to make the declaration. He also said that there was not “an issue” in the proceedings as to parentage. Although his Honour accepted that Mr Bernieres was a genetic parent, he did not accept that Ms Bernieres was a parent under the Status of Children Act, and that it was not his role to correct any legislative vacuum.

Bernieres and Dhopal [2017] FamCAFC 180

Mr and Mrs Bernieres were pretty upset with the outcome before Berman J, so they appealed.  The matter was heard by Bryant CJ, Strickland and Ryan JJ. 

Mr and Mrs Bernieres argued that section 60HB did not apply to exclude them as parents of the child because that section only applies where there is an order of a State or Territory transferring parentage to the intended parents.  They then argued that because section 60HB did not apply, it is necessary to look at section 60H, but that did not provide a definition of who is a parent in these circumstances and thus declarations could be made under section 69VA if the threshold question as to whether the proceedings involved a matter in which parentage is an issue, and whether there is evidence that places the parentage of a child in doubt are satisfied.

Their Honours stated:[6]

            “The issue that must be considered is whether it is in fact open to apply to section 69VA here, and that would depend on whether section 60HB covers the field in relation to surrogacy arrangements, and where 60H sits on the statutory scheme.”

Their Honours noted the history of the current section 60H(1) – added in 2008 and at the same time the addition of section 60HB.  Their Honours agreed with the interpretation of Thackeray CJ in Farnell and Chambua that:

            “Sections 60H and 60HB, at least to the extent that they expressly determine the status of children coming within their ambit, would be rendered meaningless if they were not interpreted to displace the presumptions in Division 12 [of the Act].  It should also be noted that sections 60H and 60HB appear in Subdivision D of Division 1 of Part VII, which is entitled “Interpretation – How this Act applies to certain children”.  I conclude that while the rules of maternity and paternity in sections 60H and 60HB are not expressed as non-rebuttable presumptions, in effect they are, and they therefore trump the rebuttable Division 12 presumption.”

Their Honours also agreed with the preliminary view of Ryan J in Mason that:

“The 2008 amendments evince an intention by Parliament that the parentage of children born as a result of artificial conception procedures or under surrogacy arrangements will be determined by reference to those provisions and not the general parentage provisions.  This interpretation achieves, on a state by state (and territory) basis, a uniform system for the determination of parentage. 

The effect of this is that unless an order is made in favour of the applicant pursuant to the Surrogacy Act (in New South Wales), the provisions of the [Family Law Act] do not permit this Court to make a declaration of parentage in his favour.”

Their Honours went on to say:[7]

            “Significantly this interpretation does not leave it open to find that where, as in Victoria, the relevant state legislation does not apply to the particular circumstance of the case, that Lacuna can be filled by recourse to section 69VA.”

In doing so their Honours disapproved of the approach taken in an earlier case of Green- Wilson and Bishop when:[8]

            “In our view it is not possible to discard the plain meaning of legislation where public policy considerations may not be seen to be in the best interests of the children affected.”

Their Honours stated:[9]

            “As was explained in a helpful article by Mary Keyes and Richard Chisholm entitled ‘Commercial Surrogacy – Some Troubling Family Law Issues’ (2013) 27 Australian Journal of Family Law 105, 112:

            Section 60H deals with the status of children born as a result of fertility procedures.  It was not designed for surrogacy situations, but it can affect them, because fertility procedures are often used in commercial surrogacy.  Most of the subsections of section 60H incorporate reference to the state and Territory legislation relevant to determining parental status.  Together, these provisions form a national scheme (although there are some inconsistencies between the federal and state and territory provisions), the effect of which is to recognise the birth mother and her consenting spousal partner as the parents of a child born as a result of a fertility procedure irrespective of their biological connection to the child.  The scheme also denies parental status to gamete donors in such cases, although as we will see there are different views about whether it does so in all situations.

            Although, as the authors comment in that article, “fertility procedures are often used in commercial surrogacy”, and that is demonstrated by the second limb of the definition of “artificial conception procedure”, such that theoretically section 60H could apply to a surrogacy arrangement, at close consideration of the section reveals otherwise.

            On its plain meaning, section 60H(1) is applied to a surrogacy arrangement (including the arrangement here), it results in the birth mother and her husband or partner being the parents, and the child not being the child of any person who provided genetic material.  Thus, neither of the commissioning parties can be the parents of the child under this subsection, and it is clearly designed to cover conventional artificial conception arrangements with the birth mother and her partner are to be the parents of the child.

            For completeness, we note that unlike section 60H(1) section 60(2) and (3) do not expressly exclude any donor of genetic material from recognition as a parent.  As it was pointed out in the article by Mary Keyes and Richard Chisholm (at page 113), judicial opinion is divided as to whether those subsections impliedly exclude such a donor.  However, because we have not heard argument in relation to this matter, we are not able to express any informed view about the same.”

Their Honours stated:[10]

            “Thus, it is plain that section 60HB now specifically addresses the position of children born under surrogacy arrangements, leaving section 60H to address the status of children born by means of conventional artificial conception procedures.  Further, the plain intention of section 60HB is delivered to each of the States and Territories to regulate the status of children born under surrogacy arrangements, and for that to be recognised for the purposes of the Act.  In other words, section 60HB covers that field, leaving, as we say, section 60H to address conventional artificial conception procedures.

            In conclusion then, section 69VA is not available here because section 60HB covers the field, and section 60H does not apply. 

            The unfortunate result of that conclusion is that the parentage of the child here is in doubt.  There is no order made under the relevant State legislation (and nor could there be) as explained Green, Wilson & Bishop). 

            There is no question that the father is the child’s biological father, but that does not translate into him being a parent for the purposes of the Act.  Furthermore, the mother is not even the biological mother, and thus is even less likely to be the “legal parent”.”

In other words, Mr and Mrs Bernieres’ child did:

1.             Did not have parents under the Family Law Act;
2.             Did not have parents under the Status of Children Act.

There are only two obvious conclusions to that:

(i)                 Either the child has no parents; or

(ii)              Mr and Mrs Dhopal, the surrogate and her husband are the parents, people who:

(a)   contracted not to be the parents;
(b)   are not recognised in their jurisdiction as the parents;
(c)   have never parented of the child;
(d)   never intended to be the parents; and
(e)   have no genetic relationship with the child.

Exceptions to Bernieres and Dhopal

There are five possible exceptions to Bernieres and Dhopal:

·                    The parents lived overseas, complied with overseas law, underwent surrogacy overseas and were recognised as the parents there, in which case they should be recognised here: Carlton and Bissett [2013] FamCA 143.

·                    Parent 2 has engaged in a step-parent adoption overseas as part of the surrogacy process. This step is not uncommon in the US, for example. Therefore parent 2 would be a parent through the definitions of adopted, child and parent in s.4 Family Law Act. What status that this gives parent 1 is not known, but it would be a bizarre outcome that parent 2 can adopt as a step-parent from parent 1, if parent 2 were recognised here and parent 1 were not.

·                    The parties live in South Australia and have obtained an order in the Youth Court pursuant to the Family Relationships Act 1975 (SA).

·                    The parties obtained a surrogacy order in the US which has been registered under s. 70G of the Family Law Act, as has occurred in Re Halvard [2016] FamCA, Re Grosvenor [2017] FamCA and Sigley and Sigley [2018] FamCA – all decisions of Forrest J.

·                    The overseas order is able to be enforced in Australia under the 1996 Hague Child Protection Convention by virtue of Part XIIIAA, Division 4 of the Family Law Act. However, a court may refuse to take action by virtue of Article 22: “if this application would be manifestly contrary to public policy, taking into account the best interests of the child.” Under reg. 19 of the Family Law (Child Protection Convention) Regulations 2003 (Cth) a Registrar of a court may issue a certificate stating that the individual has parental responsibility for the child, either by virtue of s.61C or from a parenting order made by a court. The overseas order might be enforceable even though the overseas country is not a party to the Convention[11].

Professional indemnity issue 1: from Bernieres and Dhopal

You may wonder what Bernieres and Dhopal has to do with you. Quite simply, there are thousands of children born overseas to Australian parents through surrogacy. Probably only a handful of them, a dozen at most, have been the subject of parental responsibility orders made under the Family Law Act. You MUST ask your clients on the first interview as to how the children were conceived. If ART or surrogacy were involved- beware!

The people who think they are the parties may not be the parties at all. Therefore, aside from other myriad legal issues such as inheritance, child support, superannuation and workers compensation, from a family law perspective, these matters should jump out at you:

·                If one or both parties are not parents, they do not have a right to litigate concerning their child. One or both of them must first obtain leave from the court to proceed under s.65C, being a person concerned with the care, welfare and development of the child[12].
·                There is no presumption of equal shared parental responsibility under s.61DA. How parental responsibility is divided up is from first principles.
·                If your client is not a parent, your client does not have the right to decide where the child lives, and therefore does not have rights of custody under the 1980 Hague Convention.

Professional indemnity issue 2: Piccolo and Piccolo [2017] FCWA 167

Mr and Mrs Piccolo lived in WA but underwent surrogacy in Canada. A child was conceived and born- who was then the subject of litigation and orders in the court. What didn’t happen in Piccolo was an adequate consideration about whether or not Mr and Mrs Piccolo were the parents of their child, though to be fair to O’Brien J, the case was reserved when Bernieres and Dhopal was handed down. His Honour relied upon general parenting presumptions, presumptions that have been found not to apply in surrogacy cases.

Under WA law, the requirement for surrogacy is that approval first must be obtained as to the surrogacy arrangement by the State regulator, the Reproductive Technology Council, and that the implantation must occur in Western Australia. Clearly neither of these had occurred.

Following the reasoning of Bernieres and Dhopal, neither of the parties would have been the parents of their child and both would have had to obtain leave under s.65C. The presumption of equal shared parental responsibility would not have applied.

Mr Piccolo wanted to have another child using the two remaining embryos stored in Canada, either by his current partner or via surrogacy. The embryos were comprised of his sperm and eggs from an egg donor. Mrs Piccolo opposed his doing so. She was unsuccessful.

O’Brien J stated at [133]-[134]:

“The husband seeks that ownership and control of the embryos be passed to him, as he intends to make use of them in the foreseeable future in the hope of having a further child or children. He expresses what he regards as his moral obligation to preserve and make use of the embryos, based on his belief that each of them already represents a life. He proposes either to proceed with a transfer of the embryos to Ms P, or to a surrogate in Canada. Ms P is supportive of his plans.
134 The wife opposes the husband’s application and seeks that the two remaining embryos be permitted to succumb. She argues that the sole purpose of the creation of the embryos was for the joint use of the parties to have children together, and that as she has no desire to have further children with the husband, that purpose is at an end. She raises no other objection to the husband’s proposal.”

The parties had executed forms with the clinic in Canada:

1.      the parties agreed that the embryos should be jointly owned by them;
2.      they agreed that their agreement with the fertility centre was to be “governed by and construed in accordance with the laws of the Province of [Place A]”; and
3.      they recorded their agreement as to the disposition of the cryopreserved embryos in the case of partnership breakdown or death in the following terms:
If our relationship terminates, we acknowledge that there may be dispute over the ownership of the embryos. If this occurs, we agreed to inform [the fertility clinic] in writing (within 3 months) that there has been a change in our relationship, and that we will provide the necessary legal documentation to [the clinic] indicating who will assume sole ownership of the embryos. Both Parties’ signatures will be required on this document.

In the event of the death of one of us, we hereby give authority to the surviving partner to assume ownership of the stored embryos.
In the event of both of our deaths, we hereby give authority for [the clinic] to dispose of our embryos in an ethical fashion.”

The effect of Canadian law was that, following the divorce of the parties, the husband was the sole donor, and only his consent was required for the cryopreserved embryos to be used.

His Honour stated:

“147      It was not suggested on behalf of the wife that she would be at risk of facing any form of legal obligation to a child born of the cryopreserved embryos. It is accordingly unnecessary to speculate as to the parentage under Western Australian law of any child born of the cryopreserved embryos to a surrogate mother in Canada or elsewhere, or the impact, if any, on that issue of a distinction between such arrangement being altruistic or commercial. Should one or both of the cryopreserved embryos be carried to term by Ms P, she would be the mother of that child for the purposes of Western Australian law in any event: Artificial Conception Act 1985 (WA).

148         In short, the wife has advanced no cogent reason as to why the cryopreserved embryos should be permitted to succumb, nor as to why the husband should not be permitted to preserve and eventually use them. The agreement executed by the parties in this case stands in sharp distinction to the agreement between the parties in G and G (supra) that in the event of separation the embryos owned by them were to be discarded.

149         The parties in this case expressly contemplated and agreed that in the event of separation one of them would assume sole ownership of the embryos. The wife does not wish to assume such sole ownership, but the husband does.

150         In all the circumstances I consider it appropriate to grant the relief sought by the husband.”

The point about Piccolo

This is the first time that an Australian court has determined that an embryo is property that is the subject of orders. In short, if you are undertaking property settlement cases, you MUST ask your client on the first interview if there are any embryos. If the answer is yes, then there is an inquiry about what consents were signed, prevailing law, whether your client or the other party wants to have more kids, etc. If you don’t ask, imagine being the subject of a claim that due to your failure to ask your client, he or she was prevented from becoming a parent!

Lamb and Shaw [2017] FamCA 769

This is a case of surrogacy gone wrong- from north Queensland.

The significance of the case is whether the intended father is a parent. The intended parents (a man and a woman) created embryos from their egg and sperm. They and the surrogate entered into a surrogacy arrangement. One embryo was then implanted into the surrogate.
The intended parents argued that the intended father was a parent of the child. No parentage order was made under the Surrogacy Act 2010 (Qld).

Tree J held at [65]-[68]:

“Section 23(4) of the Status of Children Act 1978 (Qld) provides that the semen donor “has no rights or liabilities in relation to any child born as a result of” a pregnancy from, inter alia, the implanting of a fertilised ovum into a woman, unless and until he marries her.

There are three noteworthy points in relation to this. The first is that s 23(4) does not utilise the device of an irrebuttable presumption that the sperm donor is not the father of the child, as that Act does in relation to the woman who produced the ovum (see ss 23(2)(b) and (3)). No explanation for the different terminology is apparent in the Act, nor does the explanatory memorandum relating to the bill enlighten this issue. Because s 17 of the Surrogacy Act only refers to the presumptions established by the Status of Children Act, it is arguable that s 23(4) is not encompassed within s 17, however it seems that the intention of s 17 was not to affect the continued operation and effect of the Status of Children Act, and hence I do not accept that only presumptions per se continue to operate.

The second is that s 23 of the Status of Children Act was enacted prior to surrogacy being statutorily recognised and regulated in Queensland, and hence, unsurprisingly, seems to work from the assumption that the child resulting from the pregnancy was intended to be retained by the birth mother.

The third is that s 30 of the Status of Children Act, which deals with the resolution of conflicting presumptions, would not, at least on a plain reading of its wording, operate to ameliorate the lack of rights and liabilities on the part of the sperm donor, because s 30 only deals with presumptions, and as I have observed, s 23(4) is not cast in that fashion. Hence, arguably, even if, for instance, the sperm donor were registered on the child’s birth certificate as a parent (and hence under s 25 presumed to be the child’s parent) on one view, s 23(4) would nonetheless operate to deprive the donor/parent/father of any rights, notwithstanding parenthood.

Upon balance I construe s 23(4) as implicitly recognising that the sperm donor is the father of the child, however despite that status, he has no rights or liabilities in relation to the child. Nonetheless, it follows that under State law in Queensland, the man who donated sperm in order to fertilise a donated ovum, is the father of any relevant child from to a woman implanted with the resultant embryo.”

The surrogate appealed from that decision, on that point. The Full Court in March noted that it was unclear whether or not the surrogate was in a de facto relationship with her male partner at the time of implantation. Accordingly the matter has been remitted back to the Family Court (preferably before Tree J) to determine that factual issue. We await the outcome!


22 May 2018


Stephen Page
Harrington Family Lawyers
www.facebook.com/Stephen.Page.Lawyer.Brisbane



[1] Stephen Page is a partner of Harrington Family Lawyers.  He was admitted in 1987 and has been an accredited family law specialist since 1996.  He is a Fellow of the International Academy of Family Lawyers, and a member of its Parentage/surrogacy and LGBT committees. He is a Fellow of the Academy of Adoption and Assisted Reproduction Attorneys. Stephen is an international representative on the ART Committee of the American Bar Association and is the founder of the LGBT Family Law Institute Australia.  Stephen and his husband Mitchell were married in Las Vegas in 2015.
[2] NSW Registrar of Births, Deaths and Marriages v. Norrie [2014] HCA11.
[5] At [12] – [16]
[6] At [40]
[7] At [53]
[8] At [54]
[9] At [56] – [59]
[10] At [62] – [65]
[11] See s.111CA Family Law Act, Bunyon and Lewis (No 3) [2013] FamCA 888 at [164] per Bennett J.

[12] The test for which was set out in Mankiewicz and Anor & Swallow and Anor [2016] FamCAFC 153.


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