Category Archives: General

Sperm Donor Stung With Child Support

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The Kansas Department of Children and Families has demanded the sum of $6 000 in child support from an American man who donated his sperm.

William Marotta answered an advertisement in 2009 to be a sperm donor for a lesbian couple wishing to have a child. Marotta provided his sperm free of charge to the couple after signing a contract that stated he would have no parental care for any child born as a result of his donation.

Eventually the lesbian parents separated and the mother with the full time care of the child applied for government funded benefits. Marotta has tried to rely upon the signed contract as the reason he shouldn’t be liable for child support, but the Government says the document wasn’t valid because a licensed physician did not perform the insemination process. Kansas law states that if a doctor handles the artificial insemination a sperm donor is not the father of the child, however, the law doesn’t cover a situation where no doctor is involved. The lawyer representing Marotta says the law is outdated and the Kansas state Government is only pursuing the case to make a point of their stance against same-sex parenting. Kansas banned same-sex marriage in 2005.

Social commentators on the case say the couple and Mr Marotta put themselves in this predicament by participating in a do-it-yourself insemination instead of following legally recognised channels.

In an interesting twist, the lesbian parents back Marotta in his fight against paying them any child support. The matter is due to go to hearing in April 2013.

Under the Qld Surrogacy Act 2010, up until such time as formal parentage is transferred from the birth parents (surrogate) to the intended parents (the recipients of the child), the birth parents are considered the child’s legal parents and therefore would be liable for child support. At the time of birth, the birth parents are named as the legal parents, not the intended parents. At the time that a transfer of parentage occurs, the intended parents will not only be named on the birth certificate, but become liable for child support should the parents separate. Therefore, the situation described in the US should not occur here – if a woman was acting as a surrogate for another woman, she and her spouse would be advised before entering into any formal surrogacy arrangement that should, for whatever reason, the child not go to the intended parents, they would be responsible not only for the child and all associated costs, but would be liable for child support. This is the case regardless of how the conception occurred.

It is important to seek appropriate legal advice if intending to enter into any sort of surrogacy arrangement or donation of sperm for IVF purposes.

Rights of Frail and Elderly Protected

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The High Court has determined that it is neither just nor equitable to separate the assets of elderly married couples just because they are forced to separate when one party moves into a residential care facility due to illness.

This case involved an elderly couple who married in 1971. It was a second marriage for both and each had children from the previous marriage. The wife became ill in 2008 and moved into a nursing home. Soon after, she, with her daughter as case guardian, applied for orders that the matrimonial home be sold and that all assets be divided equally between the parties.

The Magistrate found that the needs of both parties of the marriage would be met by this arrangement and ordered the husband to provide 42.5% of the assets or $612,931.00, to his wife within 60 days. The husband appealed this decision.

The appeal was allowed by the Full Court of the Federal Court of Australia because it was found that the Magistrate had failed to take into account the effect of the orders on the husband as well as the fact that the marriage was intact. Also, it was held that the trust fund set up by the husband for his wife was sufficient to provide for her care. One point of contention between the husband and his step-daughters was which care facility the wife should be placed in. The daughters preferred a care facility that required a $300,000.00 entrance fee and bond, a decision the husband disagreed with.

The wife passed away prior to judgment being delivered. The Court found that the $612,931.00 should then be paid to the wife’s legal personal representatives (the step-daughters) upon the husband’s death, despite the fact that his Will did not include them, but rather named his children from the previous marriage.

The husband appealed this part of the decision to the High Court on the basis that it was not just and equitable for the Full Court to make such an order. To make this type of order, the Court must consider whether it was just and equitable to make such an order when the person was alive, and whether it was still appropriate to make that order after the person had passed away.

It was found by the High Court that it was not just and equitable for a property settlement order to be made in the circumstances. The High Court relied on the reasons of the Full Court of the Federal Court, that the marriage was intact (that is, had not broken down irretrievably as was usually the case) and was an involuntary separation due to illness. Also, that the wife was already being sufficiently maintained by the husband through a trust account set up for care and contingencies, as well as contributions from Veterans’ Affairs, so there was no need for a property settlement at this stage. If her needs increased, other avenues were available such as a maintenance order. The adverse consequences of the husband having to sell the matrimonial home when it wasn’t required were also given as reasons for the finding that the order was not just and equitable.

This is the first ruling of its kind and provides clarity in circumstances where a husband and wife are separated by illness and sends a strong message to case guardians seeking to alter property interests.

Sperm Donor Father Wins Sole Parental Responsibility

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A father who was essentially a sperm donor has won sole parental responsibility in relation to his child’s education. Additionally, the child is to live with him and spend regular time with her mother, namely three weekends of the month and one weeknight each fortnight.

While the father was considered a sperm donor by both parents as the two were never in a relationship, he has been involved in the child’s life since birth, escalating to overnight stays from when the child was 6 months old, to 2 nights each week and sometimes 3 nights. A child support arrangement was entered into that is to last until the child reaches 16 years of age.

The mother has since had 2 other children to 2 different men and the father has been the sperm donor on one other occasion that resulted in another child, which the mother was unaware of.

As a result of her second pregnancy, the mother wanted to relocate which would have caused difficulty in the father spending time the child. This relocation was conducted despite an order restraining the mother from doing so.

Once the mother found out that the father had another child, she began denigrating the father to other people, including his solicitor and the greater public by altering the father’s Wikipedia page.

The mother attempted to remove the child from her school by contacting the principal and staff in an abusive manner. The mother attempted to enrol the child in another school despite consent orders that required both parents to consent to the child’s educational institution.

A Family Report was conducted that recommended that the father have sole parental responsibility for certain aspects of the child’s life (now aged 7), particularly educational needs. The father was concerned that the mother hit the child and made negative comments about the father in front of the child.

The Family Report writer made observations that the child may be subject to “parentification” as a result of the mother’s manic behaviour and the child placing expectations on herself to support the mother. Parentification is the process of role reversal where the child becomes the parent, needing to look after their own parent. This can have adverse consequences on a child’s emotional development and can affect adult relationships later in life.

The child also admitted to being more comfortable in her father’s residence. This, along with the mother’s obvious and unrelenting hostility towards the father and his family, led the court to order that the father have sole parental responsibility for the child’s educational needs, and that the child live with the father. The court also considered the mother’s previous actions of removing the child from school, acting abusively to the staff, and her inability to discuss education issues with the father would result in matters being unresolved and possibly ending up in court again.

Australians are heading to India to fulfil their parenting dreams, new research shows

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Some interesting news we read yesterday…. (from news.com.au):

Hundreds of Australians are choosing India as their destination for commercial surrogacy, followed by Thailand and the United States, rather than opt for a legal arrangement in Australia which bans compensating surrogates.

Research by Surrogacy Australia, an Australian agency involved in international surrogacy, found there were 200 recorded surrogacy births in India to Australian couples so far this year, compared to 179 in 2011, 86 in 2010 and 47 in 2009.

The research included Australian government statistics, data collected from 14 large overseas surrogacy agencies and a survey of 217 Australians.

The survey of heterosexual and same-sex Australians who had considered or sought out surrogacy found many households were refinancing their homes to afford the thousands of dollars in agency and travel costs.

The average cost of surrogacy in India was $77,000 while an arrangement in the US cost on average about $176,000.

This compared to about $45,000 for altruistic surrogacy allowed in Australia.

Half of those surveyed mortgaged or refinanced their home to pay for surrogacy, while 45 per cent cut their spending.

Others took out a bank loan, borrowed from family or sold property.

Surrogacy Australia President Sam Everingham said the trend towards overseas surrogacy would continue “while Australia maintains laws and policies that make surrogacy quite difficult within Australia”.

“We’re getting very, very small numbers accessing surrogacy here,” said Mr Everingham, who will present the research at the annual Fertility Society of Australia conference in Auckland on Monday.

Australian Institute of Health and Welfare data shows there were just 19 births from Australian surrogacy arrangements in 2009, eight in 2008 and seven in 2007.

Of the participants surveyed by Surrogacy Australia, just six had a baby following surrogacy in Australia, while four commenced an arrangement but failed and 13 were still in process.

“The research has shown that high levels of regulation within Australia and lower barriers in some overseas markets is shifting the practice of surrogacy offshore and it is a big industry,” Mr Everingham said.

“The lack of legal ability to advertise or compensate a surrogate in Australia is pushing many hundreds of infertile or same-sex couples offshore.”

However, Mr Everingham said new visa laws enacted by India would prevent singles, same-sex and de facto couples from entering surrogacy agreements which could lead to a drop in numbers in coming years.

But Australians might then shift their search to countries like Thailand, he said.

 

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.

Federal Mags Court backlog could mean no more Brisbane trial dates until 2013

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Family law clients be warned – if you believe that you can obtain a prompt resolution of your matter by taking it to trial, rather than first exploring all alternative dispute resolution (“ADR”) options, then you could be in for a shock.

One Federal Magistrate recently advised, in open court, that his trial calendar for 2012 was full and he was already allocating trial dates for 2013. And the workload placed on all Federal Magistrates in Brisbane could well be similar – some Magistrates have been known to be hearing up to 35 matters (case reviews, interlocutory applications, etc) in a day. If such workloads are the norm, even when a Magistrate finally is able to conduct a trial of your case, how long will it then take to find the time to write the judgment in that case?

To reduce the stress on the Federal Magistrates Court system, we believe some Magistrates are calling for more resources to be put into the Brisbane Registry. Even if those calls are accepted by government, how long will it take for the necessary resources to be put in place, and then how long will it take to clear the backlog of cases in the current bottleneck? In the meantime, the delay for litigants would continue.

For clients to avoid the stress and other hardships of disruption to their attempts to finalise their family law litigation, they are strongly encouraged to consider all ADR options, such as informal conferences or mediation, to resolve their cases. If they insist on “their day in court”, they could be waiting for years, rather than months, to see the end of their litigation.