Surrogacy Arrangements

The Family Law Council of Australia is due to release a Report in December 2013 into the legal issues surrounding the use of Surrogacy. A number of commentators have recently interpreted an increase in the number of Citizenship Applications for children born overseas in Countries such as India, as evidence of an increase in the number of Australians using Commercial Surrogacy Arrangements overseas.

Whilst we do not know if that conclusion is correct, it is perhaps timely to remind ourselves that the Surrogacy Act 2010 (Qld) does continue to make Commercial Surrogacy a criminal offence with a maximum fine of $11,000.00 and a maximum prison sentence of 3 years. The Surrogacy Act makes Commercial Surrogacy a criminal offence whether the acts are carried out in Queensland or if the participants are ordinarily resident in Queensland at the time the act is carried out, wherever it actually occurs. The Surrogacy Act does permit Altruistic Surrogacy provided certain criteria are fulfilled.

Electronic Communication - have you kept the appropriate records

The use of Email in particular has become a common practice for parties to a contract to communicate. Just because you have saved the email that you have sent, if it comes to litigation, have you kept the necessary records?
 

In the Electronic Transactions Act (Qld) 2001 it provides that you must keep, in electronic form –

·         The origin of the electronic communications;

·         The destination of the electronic communication;

·         When the electronic communication was sent;

·         When the electronic communication was received.

We find that people tend to dispute whether they have received a certain email, and when they received it. To make it easy for people to determine this, there are a few rules set out in the Electronic Transactions Act 2001. We have briefly summarised these for you. These rules will apply unless your contract says something different.

 

·         The time of receipt of the electronic communication is the time the electronic communication becomes capable of being retrieved by the addressee (that is the recipient) at an electronic address designated by the addressee; or

·         The time of receipt of the electronic communication at another electronic address of the addressee is the time when both -

o   The electronic communication has become capable of being retrieved by the addressee at that address and the addressee has become aware that the electronic communication has been sent to that address.

For more information refer to the Electronic Transactions Act (Qld) 2001 or speak to us.

Family Law Accredited Specialist

Aylward Game Solicitors are delighted to announce that our Partner Ian Field achieved the status of Accredited Specialist in Family Law.

The status of Accredited Specialist is awarded by the Law Society following a rigorous process of exams and assessments which are conducted every two years. These exams and assessments are truly challenging. Our congratulations to Ian, and for any clients who require specialist family Law advice he can be contacted on 07 3236 0001 or at ifield@aylwardgame.com.au.

Family Law- Be Realistic

We can’t help but think that the case of Stanford and Stanford is rather sad. Not only did the case take more than 3 years to complete, with it starting in August 2009 and finishing in November 2012. This case involved Property Settlement Proceedings between an elderly couple whose marriage was intact. The proceedings were initiated on behalf of the wife, who unfortunately was affected by dementia, by her daughter from her first marriage as her Case Guardian.

The Proceedings were continued by the Case Guardian after the wife passed away (in 2011) and the final decision was eventually made by the High Court of Australia, who had heard the matter on an appeal from an Order made earlier by the Full Court of the Family Court who in turn had heard the matter as an appeal from the Magistrates Court of Western Australia.

The decision made by the High Court at the end of that process was that there should be no Orders for Property Settlement at all. This means that the end result of more then 3 years of Litigation was no Orders for Property Settlement whatsoever.

This case really serves to highlight the vital importance of a realistic and practical appraisal from the outset of what you want to achieve from any legal action that you take, but also whether the outcome that you are looking to achieve is one that you can realistically expect the court to adopt.

Japan to sign the Hague Convention

International child abduction is an issue which often generates significant media attention and is often an issue about which parents are especially concerned in the context of a relationship breakdown. The Family Law Act contains a section which provides that once a Court has made a Parenting Order that neither parent can take a child who is named in the order overseas without the permission of the other parent. For that reason many Orders that are made by consent contain clauses which give that permission in advance. Frequently those clauses will specify that permission is only given for travel to, and via, countries which are signatories to the Hague Convention on the Civil Aspects of International Child Abduction. This is an international treaty which puts in place a system for dealing with cases of International Child Abduction, and where appropriate securing the return of the child.

The question of which countries have signed that convention therefore frequently becomes very significant. Many Qantas flights to Europe now transit via Dubai and it is worth being aware that the United Arab Emirates is not a signatory to the Hague Convention.

Another country that is not currently a signatory, which may surprise some people, is Japan. The Japanese Family Law system is somewhat different to the system in Australia, with most Court Orders in Japan providing that children live with their mothers in the event of a marriage breakdown and with joint custody not a well recognised concept. The Japanese Parliament is in the process of passing Legislation to approve the Hague Convention and it is expected that Japan will become a signatory to the Hague Convention sometime in 2014.

Once Japan becomes a signatory to the Hague Convention, anyone with a Parenting Order with a clause permitting travel only to Hague Convention signatory countries will be able to add Japan to their list of potential destinations.

Divorce all around the world

Different developments in Divorce and Family Law around the world serve to highlight different attitudes to these sensitive questions. Sometimes the legal position that we take for granted in Australia is surprisingly different in other countries around the world. In Australia we have had no fault divorce laws for many decades and that position has not come under any serious or prolonged scrutiny or criticism. Many people are surprised to learn that this is not the position in England and Wales where it is still necessary to allege fault on the part of one spouse in order to obtain a divorce, or to wait 2 years and then an Application is possible if both parties consent. However this can be impractical for many people because in England and Wales an Application for Property Settlement is not possible until an Application for Divorce has been commenced.

All 50 states in the USA currently have no fault divorce legislation, and most of them have had that in place for many decades. It seems that in contrast to Australia that there is some appetite for change in that position, and there is currently proposed legislation before the Legislature in Iowa that would end no fault divorce in situations where people have children under the age of 18 and would require anyone seeking a divorce to allege fault. The fault to be alleged would be one of Adultery, physical or sexual abuse, imprisonment, if one spouse is missing for more than one year or if the couple have lived apart for more than 2 years.  The supporters of the Legislation apparently promote it on the basis that it would serve to reduce the incidents of divorce in families of minor children.