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.

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.