Defacto Relationships – Not always what they seem

The findings made by the Court can sometimes seem counter to the headline facts of a case. In a recent decision in the Federal Circuit Court known as Benedict & Peake, after a trial which took four days, the Court found that a defacto relationship between the two parties did not exist for the purposes of the Family Law Act. This is despite the Court being satisfied that the two parties were the parents of a child (now aged over 18), the parties jointly owned property, the parties had lived at the same address for many years, and that the parties had worked together for the same business. On the face of it, you would imagine that these facts would lead to a conclusion that a defacto relationship did exist. However, on a very close examination of the fine detail the Court came to the conclusion that, so far as the Family Law Act is concerned, a defacto relationship was not in existence and therefore a property settlement, as applied for by the woman, could not be ordered by the Court.

NSW push for GPS tracking to be equipped to repeat domestic violence offenders

It is reported that the NSW Community Services and Family Minister Pru Goward is proposing to take the monitoring of domestic violence offenders to another level. The Minister believes that there is merit in the idea for repeat domestic violence offenders to be strapped with GPS tracking bracelets.

 The concern raised is for police to be able to respond to a domestic violence situation in a timely manner and GPS tracking would provide the police with additional assistance in maintaining a prompt response to those reported situations. The proposal was originally visited in 2012 during a NSW parliamentary inquiry however there were initial concerns raised about the cost and reliability of a tracking system put in place.

 Ms Goward is pushing for the proposal to be revisited to investigate how advancements in technology may help improve the safety of victims and deter recorded perpetrators. The Minister would also like to see the taskforce look at funding with regards to the devices, including making the offender pay for the cost of the GPS tracking bracelet itself.

 Although there are no current proposals for GPS tracking to be looked into in the state of Queensland, it is reported that the proposal has also been flagged in Western Australia. 

 Source: The Australian

Child Support

Whilst the question of Child Support in Australia is generally dealt with by the Child Support Agency, there are a limited number of situations when the Court can deal with the question of Child Support. A recent decision by Judge Neville in the case of Abraham’s and Sim, reminds us that the court can make Orders for maintenance and reimbursement of expenses associated with the birth of a child.

This is only possible when the Mother and Father are not married to each other and the maintenance element relates only to a short period before and after the birth of the child. In this case the Mother sought an order that the Father should pay to her a total sum of $27,061.00 and the Court ordered that the Father should pay to the Mother a total sum of $14,000.00. This is in addition to the ongoing Child Support Assessment issued by the Child Support Agency and does not take into account any payment of a baby bonus.

Family Law Around the World

There are a wide variety of different Family Law systems in place around the world. British Columbia in Canada has introduced a new possibility that we have not come across before. British Columbia’s Family Law Act, which came into effect in March 2013, has made it possible for a child to have more than two parents listed on their official Birth Certificate.

 

The first such Birth Certificate has now been finalised and the baby, Della Richards, has named on her Birth Certificate three parents, Danielle Wiley and her wife Ana Richards with Danielle Wiley having given birth to the baby, the third parent is the child’s biological father Shawn Kangro. Danielle Wiley and Anna Richards are a married lesbian couple and Shawn Kangro is a long time friend of theirs. The Family Law Act in British Columbia made this possible, provided it is considered to be in the best interests of the child and provided that a written Contract between the adults has been prepared and signed before conception.

 

We have not heard any suggestions of anything similar being introduced in Australia, but this does illustrate the wide variety of arrangements which exist around the world.

Altruistic Surrogacy

The Surrogacy Act in Queensland has been on the statute books since 2010 and a number of Parentage Orders have now been made pursuant to that Act. The requirements set out in the Act, need to be strictly complied with. Whilst the arrangements in the United Kingdom regarding surrogacy are more piecemeal and there has not been a new Act of Parliament in the UK addressing this issue for nearly 30 years there are many similarities between the two jurisdictions. Most significantly in both places Surrogacy Arrangements are unenforceable. In both jurisdictions it is illegal to advertise for a surrogate or to advertise a willingness to be a surrogate and only expenses can be reimbursed (although there are some slight variations to that in the UK). In both jurisdictions the Court can grant an Order transferring legal parentage of the child.

 

There are though some differences between the positions in the two jurisdictions. In the UK only a couple can apply for an Order transferring Parentage to them, whilst in Queensland it is possible for a single person to apply. In Queensland a written Surrogacy Agreement between all the parties is mandatory and all of the parties to the process are required to go through a process of counselling. By contrast in the UK as part of the Application to the Court, the Court will commission an expert report to advise it as far as the Application is concerned (similar to a Family Report in Australia).

 

With a debate emerging in the UK about these issues and whether the legal position there should be changed, it seems that surrogacy will continue to be on the agenda around the world.

Is the immunisation of children a Special Medical Procedure?

The decision as to whether or not to immunise children appears to be increasingly being argued in the Family Courts between separated parents. There have been a number of cases in the last few months in which this question has been decided for the parents by the Court in circumstances where one parent wishes to vaccinate the children and the other parent objects.

 

In January 2014 we understand another case will proceed before the Court in which this is a significant question. We understand that in this case the mother is objecting to the children being vaccinated and she is also seeking to persuade the Court that the question of whether the children should be vaccinated or not should be classed as a Special Medical Procedure.

 

There are specific rules and requirements which apply to cases in which the Court is asked to decide about Special Medical Procedures in relation to children and those cases have usually been in instances where the question for the Court to decide is whether or not intellectually disabled girls should be sterilised or whether children under the age of 18 should be given gender reassignment treatment. We will report on the outcome of this latest case later in the year, it would certainly be a significant legal development if vaccination was considered to be Special Medical Procedure.