Surrogacy Law – are we failing to keep up with the changing nature of the Australian family?
April 7, 2019
It is now broadly acknowledged that the nature of Australian families has changed significantly in recent decades. Families now come in many shapes and sizes. They are becoming increasingly more “blended” (as couples dissolve and re-partner), and they include parents who are lesbian, gay, bisexual, transgender, intersex and single by choice.
Some of these new forms of family are a result of recent and rapid advances in fertility technology, such as IVF. Unfortunately, the law has at times been slow to respond. In Australia, parentage law can also be complex as a result of uncertainty surrounding the way in which the federal Family Law Act 1975 interacts with state or territory laws.
As with IVF, there are many legal and ethical complexities that surround surrogacy. Notwithstanding the existence of religious and moral objections, surrogate pregnancies are nonetheless on the rise both in Australia and overseas. It is particularly common in Hollywood, with celebrities such as Kim Kardashian, Nicole Kidman and Sarah Jessica Parker all having used surrogates.
Recently, consideration has been given to the need for greater national consistency in Australia at the state and territory level and, where relevant, the Commonwealth level. In November 2018, the Australian Government released its Response to the Standing Committee on Social Policy and Legal Affairs Report on Surrogacy Matters. This report recommended the development of a model national law that facilitates altruistic surrogacy in Australia with regard to a number of guiding principles. These principles include the need for legal clarity about the parent-child relationships that result from surrogacy arrangements.
The Government’s Surrogacy Matters report was made in response to a parliamentary inquiry into the regulatory and legislative aspects of international and domestic surrogacy arrangements. The inquiry heard evidence of the difficulties that are faced by parents looking for a surrogate in Australia, of increasing numbers of people looking for surrogacy options overseas and of discrimination faced by single parents and same-sex couples in some State jurisdictions.
In Western Australia, the law concerning surrogacy is principally governed by the Surrogacy Act 2008. Single men and same-sex couples are unable to enter into surrogacy arrangements, and in line with other Australian jurisdictions, all commercial surrogacy arrangements in WA are illegal. There are also stringent requirements for getting surrogacy approved, including: the need for a written agreement signed by all parties, that each of the parties undertake counselling, that each be assessed by a clinical psychologist and that each receive independent legal advice.
Surrogacy agreements take time. Even in straightforward matters involving experienced lawyers and organised clients, who have explored and resolved all material matters in the course of counselling and ongoing conferral prior to the engagement of lawyers, a surrogacy agreement will likely still take at least 4-8 weeks to finalise.
Some of the bigger issues that need to be agreed between parties to a surrogacy agreement might include:
- Who should be present at the birth of the baby?
- Will the child be introduced and otherwise have any contact with the birth mother’s other children?
- What information exchange, if any, has been agreed between the arranged parents and the birth mother concerning the child in the future?
- Has there been any consideration given to when and by whom the child, (if at all), should be informed as to the circumstances of his/ her birth?
Following the birth, there are a number of steps that then have to be taken in order to obtain a parentage order from the Family Court of WA for the child. The birth parents will remain the legal parents and named on the birth certificate until parental responsibility is transferred to the arranged parents. Any court order to transfer the parentage of a surrogate child to the intending parents must be based on the child’s best interests and is contingent upon a surrogacy arrangement having been approved by the Western Australian Reproductive Technology Council.
Surrogacy law is an evolving and complex area of family law. It is essential that the surrogate mother and the intending parents obtain high quality, independent legal advice prior to entering into a surrogacy arrangement. Lucy Thomas, Director at Paterson & Dowding is experienced in providing independent advice to those wishing to enter into a surrogacy agreement. For an appointment, please telephone (08) 9226 3300.
Access to Justice: Family Law advice in regional WA
March 11, 2019
The sheer size of the State of Western Australia raises unique challenges for separating couples that live in rural, regional and remote areas. The geographical size and distribution of the population in WA means that many find it difficult to access legal advice and may incur additional costs in doing so. Ancillary services, such as family dispute resolution and counselling, are also often difficult to locate and can require long distance travel.
In August 2018, the Law Council of Australia released its final report into the state of access to justice in Australia. The ‘Justice Project’ focused on a number of groups experiencing significant disadvantage in terms of access to the legal system and legal services. One of the findings of the Project was that additional funding and resources are required to maintain and, where required, expand regional courts, having regard to their important function in upholding the rule of law and fostering community engagement through a tangible local presence.
- The Justice Project report also recommends that alternative dispute resolution is available and taken up in rural, regional and remote In most cases, attendance at family dispute resolution is now compulsory and parents who wish to resolve disputes relating to children are required to make a genuine effort to do so before commencing court proceedings.
- At Paterson & Dowding we have a number of practitioners who have lived and worked in regional and remote Australia, including Pinjarra, Bunbury, Geraldton, Port Hedland and Broome.
We have lawyers who can visit clients and attend court in regional WA. The Family Court of WA is located in Perth, however, court documents may be filed in the registries of the Magistrates Court throughout WA. Regional Magistrates can also hear urgent family law matters before transferring the proceedings to the Family Court. The Family Court can then list matters in a country circuit conducted by a family law Magistrate.
A country circuit is where judges and magistrates travel to regional towns throughout the year. The Family Court of WA currently holds circuits in Bunbury, Albany, Broome, Geraldton and Kalgoorlie.
The Court has recently taken steps to provide for electronic filing of most family law documents which should make this process considerably easier for those who do not live in the Perth metropolitan area. This is provided, of course, that rural, regional and remote West Australians also have access to the necessary technology and telecommunications infrastructure to allow them to take advantage of this service.
At Paterson & Dowding, we understand the additional challenges that are involved in trying to resolve disputes that involve one or more party living in the country, including difficulties of privacy and confidentiality in smaller communities. Our lawyers have experience in dealing with financial issues that are unique to rural landholders, including the conflict that arises between the farmer who may be asset rich and cash poor and the need for a financial settlement that does not involve the selling of the family farm.
If you live in a rural, regional and remote area of WA and need help with your family law matter, please contact us.
How does the Family Court deal with inheritances?
February 18, 2019
The law is quite clear – an inheritance received during the marriage or de-facto relationship and even after separation, is property the Family Court will include in the asset pool available for division.
However, the Court may treat the inheritance differently depending upon when it was received, the uses to which it was put, and the totality of the parties other contributions.
Generally speaking, the Court may regard an inheritance as a contribution by the party who received it. The other spouse can’t be regarded as contributing significantly to such an inheritance, except in very unusual circumstances. These might include the care of the deceased prior to death, or other financial and non-financial contributions to property owned by the deceased. For example, the husband may claim an interest in a home inherited by the wife, if he helped maintain the home.
In certain circumstances, such as where a spouse received an inheritance late in the relationship or after separation and did not “mix’ the cash or property with the parties own regular property, and there is enough regular property owned by the parties, the Court may follow a “two pools” approach by separating the inheritance from the regular property.
The practical effect of “quarantining” the inheritance is that it is not available for division, but the Court can take it into account when considering the future needs of the person who received it. Speaking on this point, Cronin J in Sinclair & Sinclair [2012] FamCA 388 at [23], noted that ‘isolating or quarantining an inheritance must be cautiously done to ensure that earlier important contributions to the family are not ignored’.
Supporting a local Youth Teeball team
February 13, 2019
Paterson & Dowding continues to support the community and is proud to sponsor the Paterson & Dowding Puma’s, a youth Teeball team playing as part of the Carine Cats Club.
When dealing with difficult situations, being both physically and mentally healthy is important and an outdoor team sport is a great way to help achieve this.
The staff and directors wish the Paterson & Dowding Puma’s every success in their sporting endeavours this season.
