Monthly Archives: June 2012

Surrogacy laws to change despite election promise

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The new government plans to change surrogacy laws, despite an election promise to the contrary.

The Queensland Attorney General, the Honourable Jarrod Bleijie said last week in Parliament:

“I can also advise the House tonight that the government will be changing the surrogacy laws in the future. We will be introducing amendments similar to those introduced by the honourable member for Southern Downs when he was the shadow minister. We will be repealing the provisions in the Surrogacy Act that deal with same-sex couples, de factos of less than two years and singles. That was a clear commitment given many years ago when that original debate took place. The government will proceed to amend the Surrogacy Act.

What we are also going to deal with is the other issue that that bill dealt with and that is parentage presumptions and parentage orders. Honourable members will recall at the time that the member for Southern Downs supported two lesbian women, who had a natural birth, both having parentage orders. I make it absolutely clear that going forward the government will be amending the provisions around altruistic surrogacy and the Surrogacy Act to repeal the provisions with respect to same-sex couples, de factos of less than two years and singles. That is the policy position we took years ago when we debated the Surrogacy Act.”

The Attorney General refers in his speech to the previous debate surrounding Surrogacy and the views held by Lawrence Sringborg back in 2009.

The current legislation states that regardless of a person’s relationship status, they can enter into a surrogacy arrangement.   An intended parent may be a person in a same sex relationship or as part of a de facto couple or a single person.

The amendments discussed above will completely exclude same sex couples and/or those in de facto relationships for less than two years and single people from entering into a surrogacy arrangement.

Premier Campbell Newman provided assurances just days before the March election that there would not be any change to the Surrogacy laws introduced by the previous Labor government. In his defence, Mr Bleijie said Mr Newman was not completely across the issue at the time of making that promise.

What do Queenslanders think?

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Choosing a Testamentary Guardian for your child: What you need to know

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What is a Testamentary Guardian?

There are a number of important factors for parents to consider when deciding who they would like to be their child’s guardian.

A person appointed by a parent’s Will to be responsible for making long-term care, welfare, and development decisions for their child. When both parents are deceased, the Testamentary Guardian will also be responsible for the child’s daily care and living conditions.

Who can appointment a Testamentary Guardian?

Any parent of a child that is under the age of 18 can make the appointment.

How can they appoint a Testamentary Guardian?

A parent can only make the appointment through their Will.

Choosing a Testamentary Guardian

There are a number of common factors for parents to consider –

  • Trust and understanding – It is important to choose someone that you trust and who understands how you want your child to be raised.
  • Location – It is important to choose someone who lives in Queensland and intends to continue living there (if you do not want your child to relocate to live with the Testamentary Guardian).
  • Age – It is important to choose someone close to your age, if you would like your child to be exposed to a person with a similar energy, perspective, and values.
  • Financial Stability – It is important to choose someone who is financially stable and able to make good financial decisions.
  • Relationship with child – It is important to choose someone that your child knows and respects, so any transition will be as smooth as possible.
  • Willing and able – It is important to choose someone who not only understands the role of a Testamentary Guardian, but who is also willing and mentally/physically able to carry out that role.
  • Relationship with executor – It is important to choose someone who has a good relationship with the executor of your Will to ensure they will work together to carry out their duties for the benefit of your child.

Can there be more than one Testamentary Guardian appointed?

A parent may elect to appoint more than one Testamentary Guardian. However, when there is more than one Testamentary Guardian, they must agree on their decisions for the child. In this situation, there is a risk that disagreements could occur which may negatively affect your child.

What are the advantages of appointing a Testamentary Guardian?

Advantages of appointing a Testamentary Guardian include:

  • having the peace of mind knowing that someone you trust is protecting your child’s future;
  • having the appointment form part of your financial planning in preparation if the unexpected happens;
  • having the opportunity to choose a person who can legally assist your child to obtain a passport, a loan, a bank account, or enter certain types of employment; and
  • having a person responsible for making decisions about your child’s education, religion, and medical treatment.

When should I change my appointment of Testamentary Guardian?

You will need to update your Will if:

  • The chosen Testamentary Guardian changes his/her mind about taking on the role; and/or
  • your child or proposed Executor develops a negative relationship with Testamentary Guardian.

What happens if a Testamentary Guardian is not appointed?

Where one parent survives, he/she will usually take responsibility for making daily and long-term decisions for the child, but where no parents survive and no Testamentary Guardian has been appointed, then the court will determine who is best to look after the child.

This can be a lengthy and distressing process at a time where the child is already experiencing emotional turmoil and grief. A disagreement between family members who wish to take care of the child can only compound the child’s anxiety. Even after the court chooses a person, conflict may still exist because of continuing family disagreement or a breakdown of the family relationship with the child.

Who will make major financial decisions on behalf of the child?

If no parent survives, a Testamentary Guardian will make financial decisions in consultation with the Executor who will take steps to provide the necessary advance from funds held on behalf of the child.

Practical considerations

When choosing a Testamentary Guardian, you are in control. Talk to the person you wish to appoint so that you feel comfortable and confident with your choice.

It is important to plan for financial resources to be in place to look after your child, especially if your child suffers from an ongoing health problem.

A child is meant to have a happy childhood, and as responsible parents you can make a plan to ensure this if the unexpected happens, because without a plan –

YOU ARE RISKING THE QUALITY OF YOUR CHILD’S FUTURE.

We can assist you with putting together a plan for the future care of your child if the unexpected happens.

To enquire about your Will and how to protect your child’s future, contact Loan Chow on (07) 3232 5719 or loanc@whd.com.au.

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Federal Magistrate orders children have no relationship with father; writes letter to children

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Federal Magistrate Altobelli has written a letter to two children explaining his reasons for his decision not to allow them a relationship with their father.

In this sad and tragic case recently decided in the Federal Magistrates Court in Sydney, Federal Magistrate Altobelli has ordered that the children of the relationship live with their mother but have no relationship with their father. The decision made by the court is indicative of the case’s intricate complexity and it is only upon reading the judgement that it is possible to understand the difficult task faced by the court.

There were disclosures made by the two children that the father had sexually molested the youngest child, a daughter. The court ultimately found there was not an unacceptable risk of sexual abuse to the children. Despite this, however, the mother continued to believe that the child had been abused and nothing could deter the mother from this train of thought.

As a result of these allegations, the mother maintained a position that the father was unsafe and she would not permit the children to see him. It was clear that the mother was alienating the father but the court-appointed expert was of the view that the children had simply absorbed the mother’s perspective on things and as a result, held her views as their own. The expert gave compelling evidence that the child had, on the evidence, not been abused, and that the mother had better capacity to meet the needs of the children but she was not capable nor willing to facilitate a relationship with the father.

The children were 11 and 6 at the time of trial, and held stringent views that they did not want to see their father. This concurred with the view of the mother that the father had no role in the children’s lives, in the past or the future.

The father wanted a relationship with the children and, in view of the mother’s alienation, sought to have them live with him. The mother had been the primary carer of the children and a change of residence was not considered in their best interests, nor was it held in their interests to continue to have failed attempts to spend time with dad.

Faced with the facts as they were and the resistance from the mother and children, His Honour made an Order for sole parental responsibility but specifically ordered that the mother keep the father informed about the children’s schooling and their health. He is to have no time with them but is permitted to write and send cards and gifts.

It was the expert’s evidence that he hoped the children, when they were older, would consider the matter and perhaps read the judgement to understand the court’s decision. His Honour wasn’t fond of this idea – judgements were not written with children in mind – so he reconvened the trial to seek the parties and the expert’s view on a letter to the children.

This letter was an attempt by the court to assist these children understand: firstly, why the Order was made; secondly, advise them that their father and, in fact, both of their parents loved them; thirdly, to state that the court did not hold the view that they had been hurt by their father; and finally, to encourage them to re-establish a relationship with their father. His Honour hoped the letter might accelerate or act as a catalyst for repair or restoration of their relationship with their father. The letter is to be delivered when they turn 14 years of age and with the assistance of a counsellor.

His Honour denied the children the right to know and be cared for by both their parents, denied their right to spend time with their father on a regular basis and denied them the right to enjoy their father’s culture – but he states he did so for good reason and in their best interests.

The letter His Honour wrote to these children is shown below:

Dear X and Y,

After your mum and dad separated they could not agree about where you were to live. You were 10 and 6 at the time. As a judge it was my job to make this decision. I had a lot of help from the lawyer who was representing you, and each of your parents, as well as an expert child psychiatrist. Even with all of this help it was a hard, sad case to decide. This letter is to try to explain my decision to you, even though you probably won’t read it for many years.

The most important thing I want to tell you is that both your mum and dad love you very much. They loved you from the day you were born, love you now, and will love you for the rest of their lives. Just because your dad may not have been around for a while, it does not change that he loves you.

At the time I had to decide the case your mum believed in her heart that your dad hurt you. My job is to look at all the information, and listen very carefully to what everybody says including the experts. I decided that you had not been hurt by your dad. Even after I told your mum what I decided, I think she still believed in her heart that your dad had hurt you. This just goes to show that sometimes words do not change a person’s heart.

At the time of the case both of you were saying things, and doing things, that told me you did not like your dad, and did not want to spend time with him. I don’t think you really meant this. I think maybe you were picking up the things that mum was worried about. I listened to what you were saying, but in the end the hard decision I had to make was not because of what you were saying or doing.

I told you this was a hard, sad case to decide. I decided that even though your dad really wanted you to live with him, it was best that you lived with mum, even though this might mean moving away from where you lived at the time. I knew your mum would look after you really well. I decided not to make your mum let you see your dad, even though your dad wanted this very much. I thought it would make things harder for you if I had done this.

By the time you read this letter I think you will be old enough to make up your own mind. I hope you will think about contacting your dad and getting to know him again. There are people called counsellors who can help you with how you feel about this, and help you to make it happen. Please remember that both your mum and dad love you very much, even if they love you in different ways.

Yours faithfully,

Federal Magistrate Altobelli

New Changes to the Family Law Act – Effective 7 June 2012

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Amendments to the Family Law Act aim to provide greater protection for children from family violence.

Background

The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 was passed by the Senate on 24 November 2011 and comes into effect on 7 June 2012. The legislation alters some of the Howard government’s family law reforms made in 2006 which placed greater emphasis on shared parenting. These amendments aim to provide greater protection for children from family violence.

These changes have been prompted by reports exposing a range of problems with the existing legislation that potentially placed children at risk of family violence.

The objective of the changes is to improve the court’s decision-making by giving priority to a child’s safety when determining what is in their best interests and to make it easier for allegations of family violence and sexual abuse to be brought before the court.

Primary Considerations

The reform to the Family Law Act in 2006 provided for two primary concerns for the court to consider when making parenting orders. The first concern is the benefit to the child of having a meaningful relationship with both of their parents and secondly, the need to protect children from harm and abuse.

The new Act clarifies the second primary consideration. Where there is a conflict between these two primary considerations, the Act now requires the courts to give more priority to the protection of children from harm and abuse.

The Act has also changed the definition of domestic violence. As opposed to merely being afraid, the new definition of violence means behaviour that is physical violence, threatening or other behaviour that coerces or controls somebody or causes them to be afraid. It also includes socially and financially controlling behaviour and exposing a child to violence.

The changes go so far as to detail circumstances which may expose children to family violence, including hearing violent behavior, comforting family members following an assault, and cleaning up after property has been intentionally broken. Other additions include violence or threatened violence to family pets, unreasonable withholding of financial support and isolating the family member from their own family.

Abuse of Children

The amendments also place an emphasis on the abuse of children and the circumstances in which a child may be considered to have been exposed to family violence. This might include serious neglect and psychological harm.

Additional Considerations

There are a range of additional considerations when considering the best interests of children. The Act has repealed section 60CC(3)(c), (4) & (4A) which were known as the ‘friendly parent provisions’. The court will no longer be required to consider the ‘willingness and ability’ of a parent to facilitate a relationship with the other parent in determining the best interests of the child. There is however, an additional consideration under section 60CC(3)(c) and (ca) which now allows the court to consider the extent to which each parent has fulfilled his or her obligations to maintain the child, the extent to which he or she has taken the opportunity to participate in decision making in relation to the child as well spending time with and communicating with the child.

In an attempt to encourage parents to bring instances of family violence or abuse to the attention of the court, the court has now repealed section 117AB which allowed the courts to order costs against a party who has been found to have made a false allegation or statement.

Conclusion

Whilst there is always debate about the Family Law Act and regular demands to keep changing it, these reforms are a sensible approach to dealing with the serious issue of family violence and abuse when making parenting orders.