We hear the pitter patter of tiny feet on the horizon….

Being a Surrogacy Lawyer is probably one of the best jobs in the world. No matter which party you are acting for, whether it be the surrogate and her partner or the intended parents, you have the honour of working together as a team to achieve the most wonderful of goals on this earth… making a family.

As a parent myself to three children I couldn’t imagine being without, it is an absolute thrill to be part of something so special and something, really, so personal.

One of our clients recently received the news that all involved were waiting with baited breath to hear… two blue lines, a baby is on the way! To get to this point though, there were a lot of ducks to line up, leaving aside for the moment the matter of getting through the fertility clinic processes to get to even transferring the embryo.

There are a lot of things to consider, a lot of advice to hear and digest, counselling to be organised, documents to be drafted, group discussions to be had. It doesn’t mean that this has to be a necessarily long process, but there are a number of steps that must be followed to ensure that it all ends with a Parentage Order. The order means that the Intended Parents become the child’s parents and the Birth Parents stop being the child’s parents.

For most people, the option of surrogacy comes at the end of what is a very long journey of trying unsuccessfully to conceive and hitting brick wall after brick wall. To find that precious person who is willing, out of the goodness of their heart, to provide such a special gift of being a surrogate is an amazing thing. Not to mention the surrogate’s partner and family, all on board to support her in this altruistic act.

The lawyers involved should work together to make sure that their clients are protected, but also work in a way that creates and nurtures an atmosphere of trust and co-operation. After all, many of the steps in the surrogacy process are not enforceable. Without these elements, the goal may be out of reach.

If you are considering surrogacy as an option, contact Daykin Family Law today for a reduced fixed fee initial consultation to discuss the process and how we can help you. We have surrogacy matters in three States and can assist even if you are from outside of Queensland. We offer phone and Skype consultations to suit your schedule.

I hear jingle bells…

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With Christmas trees and carols delighting the senses at your local shopping centre already, it’s time to think about your parenting arrangements and financial needs for the festive season.

For a lot of family lawyers, right before Christmas can be a flurry of activity.  Trying our best to negotiate what time a parent can spend with their children, what contributions will be made towards various school activities, when changeovers will be, what days each parent can call the child, whether extra money will be given to a spouse to make sure that they can entertain the kids over the holidays.  All too often as well we are called on to interpret Parenting Orders at the 11th hour.

For some, urgent mediations are required right before Christmas Eve in an attempt to ensure that kids will see both parents over the holidays and one spouse has enough money to live on.  Many people panic that their family lawyers’ office will be closed and not available to help if the need arises.

Even with all of this aside, Christmas time can be stressful for everyone.  Bills piling in the door, holidays to pay for and relatives to deal with.  With a little forward planning, making arrangements for your children and your finances over the festive period does not have to add to your holiday headaches.

If there are no Parenting Orders or Spousal Maintenance Orders in place, a conversation may need to be had with your former partner or spouse about where your child will spend their time over the holidays and what resources are needed to ensure that you are able to support yourself and your child over the holidays.  Items for discussion may include short term parenting arrangements, child support and spousal maintenance.

But how much spousal maintenance is reasonable to ask for? Am I entitled to it? Can I seek any contribution from the other parent towards expenses for my children outside of child support?  To answer these questions, you will need to provide your family lawyer with information about yours’ and the other person’s income and reasonable living expenses and your child’s needs.  In broad terms, a person must have a need for spousal maintenance and the other spouse party must have capacity to pay.  You could be entitled to maintenance whether you were in a married or de facto relationship.  For child support, there are certain circumstances where you can seek a higher than assessed rate of child support but these are limited.

If an agreement cannot be reached, then an urgent application to the Court may be necessary if your child is being unreasonably withheld from you, or if your former partner or spouse is controlling the family finances and you are in dire need of financial support.  This is a busy time for the Courts so if you think that an application may be necessary, you should contact us as soon as possible to discuss your options and to avoid delays.

Image courtesy of Feelart at FreeDigitalPhotos.net

Meet my friends. Full and Frank Disclosure. Why are they so important in family law?

Spend enough time with any family lawyer and you may hear about our friends, Full and Frank Disclosure, or even just “Full and Frank”. No, they’re not our actual friends but a reference to the pre-action procedures and each parties’ duties in family law matters including financial and parenting cases.

Each party to a family law dispute has a duty to provide to the other party all information relevant to an issue in the case. When does it start you may ask? It starts before proceedings are even filed.

Schedule 1 of the Family Law Rules 2004 (Cth) sets out what is known as the Pre-Action Procedures. The Rules state that before starting a case, each prospective party must comply with them.

Schedule 1 states that parties must make a genuine effort to settle matters, and comply with the duty of disclosure. It details the types of documents and information which should be exchanged between the parties to a parenting or financial matter (including property settlement and spousal maintenance). If these are not complied with, the Court can consider a party’s non-compliance when making a costs order.

There are only limited circumstances where a prospective party does not have to follow the Pre-Action Procedures and you should consult a family lawyer about whether these apply to you.

Disclosure does not just mean paper documents. It includes other information which may be stored on a computer or device. In financial matters, there are specific rules about full and frank disclosure over and above the general disclosure requirements. Each party must make disclosure of their total direct and indirect financial circumstances. This can include bank statements, company and Trust documents, superannuation statements and much more. It extends to information about any property disposal that was made in the year preceding separation or since final separation.

In parenting cases, the Rules say that parties must make full and frank disclosure of all information relevant to the case. This could include medical reports, school reports or photographs.

Just because the other party does not know about the information, does not mean that you don’t have to disclose it to them. If the information is relevant to an issue in the case, it must be disclosed.

The duty of disclosure is continuing throughout a matter. As a family lawyer, I am constantly surprised how other practitioners say after exchanging a stack of documents, “Our client’s disclosure is now complete”. It isn’t. It continues up until the matter is settled in or out of Court.

So why is this all so important? If you do not comply with the duty of disclosure, a number of things may happen. The Court may refuse to let you use certain information as evidence in your case, which could damage your prospects of succeeding in the outcome you are aiming for. A costs order could be made against you or, in serious cases, you could be found guilty of contempt of Court and face being fined or imprisoned.

In financial cases, non-disclosure by a party could warrant the other party making an application to Court to set aside any property settlement orders made or Binding Financial Agreement entered into. If such an application is successful, the other party will be entitled to seek orders for property settlement. All of the property of both parties would be taken into account as at the date of agreement being reached or a trial. This means that a non-disclosing party could go on to amass significant assets after a property settlement and if those property settlement orders or that Binding Financial Agreement is set aside, the assets accrued after separation would be taken into account and could be divided in the later proceedings. Serious costs consequences could follow.

The Court may, in certain circumstances, make orders in financial matters giving a lot more of the assets to an innocent party where there is evidence that the other party is deliberately not making disclosure of assets. This can help parties in situations where assets can be traced to a certain extent, and then it becomes either too costly or too difficult to trace them any further.

In short, “Full and Frank” are serious and should not be taken lightly. Talk to an experienced family lawyer about your obligations when it comes to making disclosure, or if you think your spouse or ex-partner may be hiding assets from you. A wrong turn could mean that, sooner or later, it’ll catch up with you with serious consequences.

Presentation to QLS: Key considerations for parenting matters & domestic violence

A great afternoon was had today presenting to a mix of lawyers and support staff on the basics of family law at the Queensland Law Society.  I had the pleasure of speaking about the key considerations when making parenting orders and practical guidance for domestic violence matters.

I took participants for a brisk stroll through the United Nations Convention on the Rights of the Child 1989, through to the Family Law Act 1975 and the key legislative shifts that have occurred in our area along the way.  Highlights included the move away from the “Disneyland Dad” era where Dads were largely relegated to parenting every second fortnight, to a greater focus on sharing the care of children and promoting the child’s rights. Also the widening of the types of conduct which can be considered family violence, and the greater weight placed on the need to protect the child from abuse, neglect and family violence.

The best interests of the child was a central theme, the Court’s paramount consideration when making parenting orders.  We looked at the primary and additional considerations in Section 60CC and what types of things a well drafted consent order should include, and what issues to explore with clients to ensure that their needs and the children’s needs are met when drafting orders.

I discussed that it is far better for clients if they can reach an amicable resolution with the other parent through mediation or other forms of alternative dispute resolution, and stay away from the Court unless absolutely necessary.

A practitioner’s approach to matters from the start can impact not just on the path that a matter takes (and in some cases, how much it costs), but how parents interact when it comes to the breakdown of their relationship and making arrangements for their children. This is a huge responsibility and not one that should be taken lightly by any practitioner, or any professional in a position to help parents through separation and into a functional co-parenting relationship that works for them and their children.  Because at the end of the day, that’s what it should all be about and why we get up everyday and do what we do in family law.

The importance of pragmatic advice

I was reminded recently about why it is so vital that people going through a separation obtain pragmatic advice, as early as possible after separation.

Sometimes us family lawyers can sense when another party may not be receiving the most pragmatic advice, or they may not be taking their lawyer’s advice on board.  For some, this can have dire consequences for their families and their futures.

An experienced family lawyer can look down the road a fair distance and foresee many of the obstacles that you will come up against.  In a property matter, this may involve advising clients to make concessions early in a matter, to enable the parties to build goodwill through the negotiations process and come to the bigger, more important decisions with a clear head and commercial approach.  For a parenting matter, experienced lawyers can give clear and unbiased advice on the things that you can do to diffuse conflict and even the things that you should avoid doing so that you do not compromise what you are trying to achieve for your children.

If an agreement is not on the cards, an experienced family lawyer can give you upfront advice about the orders you should seek from the Court that are not “pie in the sky” orders, unlikely to be ordered by any Judge.  In my opinion, it is always far better to seek realistic orders from the Court, based on the facts, the law and with a firm eye on what the likely outcome will be.  This will ensure that you enter the litigation process on firm ground, without having to shift significantly or take rapid back steps at any court ordered mediation to get in the ball park of what the Court would order and, ultimately, what the other party may be willing to agree to.  A compromised position at the start can get you off on the wrong foot, and this ground can be hard to regain as time goes on.

Some people may not be aware that lawyers are not meant to be mere puppets for their clients.  Yes, we act on instructions, but if you are not getting feedback from your lawyer about the instructions you are giving, and the ways that you can strengthen your position to achieve your ultimate goals, then something may be amiss in the lawyer-client relationship.  It is important that you trust the advice that your lawyer gives and that you have faith in the guidance they provide you with.

Particularly in family law, us lawyers as often faced with the task of having to give frank, honest advice to ensure that our clients keep their eyes open at all times and can make informed decisions.  Sometimes, it may not be the advice that the client wants to hear, but when you are dealing with people’s children, assets, businesses and futures, a trusted advisor will serve you far better in the long run than a cheerleader.

Daykin Family Law prides ourselves on providing clients with 360 degree advice, so that clients can look at issues from all angles, weigh the risks, benefits and disadvantages on certain courses of action, and make clear decisions.  This approach is geared towards saving you and time money, so that you never have to question whether you had the right advice at the right time.

Happy opening day for Daykin Family Law!

Today I opened the doors to Daykin Family Law! I am looking forward to continuing high quality family law services to clients in all areas of family law from property settlement and parenting matters to surrogacy and adoption, and everything in between.

Our new office is located conveniently in the Green Square precinct in Fortitude Valley near Alfredo and Constance Streets.

At Daykin Family Law we value our clients’ time and are focused on tailoring pragmatic solutions as efficiently as possible. We understand your need to maintain control over your outcomes and are there to guide you through the process so you can move forward with your new life.

Contact me to discuss our reduced fee initial consultation where we will design a bespoke action plan that suits your needs.

ABC News story: Surrogacy & the NT

I was interviewed recently by ABC News about the work I am currently doing for Surrogacy Australia, as part of their Legal Committee, in drafting a Surrogacy Bill for the Northern Territory.

Click here to view the article up on today’s ABC News website: http://www.abc.net.au/news/2015-05-06/proposed-surrogacy-changes-would-make-paying-for-babies-illegal/6447464

Surrogacy Australia is a not-for-profit consumer association supporting research and advocacy in the field of surrogacy.  The organisation is dedicated to progressing the rights, social and legal status of Australians using surrogacy overseas and within Australia.

As it stands, there is no legislation currently in place in the Northern Territory regulating surrogacy, unlike every other State and Territory in Australia.  Whilst it may be seen as fertile ground for surrogates and intended parents to connect, given there are no prohibitions on advertising in the NT like other parts of Australia, it is difficult for people to access treatment for surrogacy in the NT.  Also, there is no legal mechanism there allowing for intended parents to obtain parentage orders after the baby is born, altering the birth certificate.

Surrogacy Australia advocates for the “moderate regulation” framework for surrogacy legislation currently followed by Queensland, NWS, the ACT, Tasmania and South Australia.  This involves a mandatory written agreement, counselling and legal advice for all involved and the availbility of parentage orders after the child is born.

The draft Bill will be sent to the Northern Territory this week.  Updates to follow once a response is received.

 

 

Supervised time in parenting matters: When is it necessary?

What we know about child abuse and family violence for sure is that it does not discriminate in terms of age, status, wealth or other socio-economic backgrounds. Anyone in any walk of life could be placed in a difficult or life threatening situation involving the other parent of their child and it can have damaging and lasting effects on children.

Women particularly are often faced with having to protect themselves and their children from their spouse when they leave the relationship. With personal safety a priority, I often advise clients on both sides about the steps that should be put into place to ensure that a child is protected from experiencing harm or the risk of harm before and after separation.

For some families, this means ensuring that a child’s time with one of their parents, or some other important person in their life, is supervised. This is known as supervised time and the Courts can put orders in place to ensure that all time, if necessary, between a child and another person is supervised at different stages of a matter.

What is supervised time?

Supervised time means that some other responsible adult is present at all times that a child spends with the person in question. The supervisor should be someone either independent of the parents, or someone that would not cause conflict with the parent being supervised or place the child at risk of being exposed to conflict.

Supervised time can take place in the presence of a mutually trusted friend, family member or some other person. It can also take place within the context of a privately or publicly funded contact service at a cost. The publicly funded Children’s Contact Centres often have long wait times and restricted availability, but are much more cost-effective. On the other hand, privately funded contact services can facilitate supervised time almost immediately and frequently, but they can be expensive.

What does the law say about this?

It is important to know from the outset that the paramount consideration for the Courts in making parenting orders is the best interests of the child. It is legislated that way and should be at the forefront of what every parent and family lawyer does when negotiating and proposing parenting arrangements.

Whilst the benefit to a child of having a meaningful relationship with both of their parents is a primary consideration for the Court, this must be balanced with the need to protect the child from harm or exposure to abuse, neglect or family violence. The latter is also a primary consideration. If these two primary considerations are at odds, the Family Law Act 1975 (Cth) is clear in that the Court must give greater weight to the need to protect the child.

That said, the Act and the Family Law Courts place a high value on the child’s right to know and be cared for by both their parents. If at all possible, parties should try to agree on an arrangement that maintains the child’s relationship with the other parent, if it is safe to do so. Sometimes, measures like supervised time must be put in place to allow this to occur.

What situations can give rise to supervision?

The situations where supervised time may be appropriate and ordered by the Court include a risk of violence to children (physical or emotional), a risk of child sexual abuse or a risk that a parent may not conduct themselves in a way that is in the child’s best interests.

Such conduct can be related to a parent’s struggles with drug or alcohol issues, or mental health issues experienced by a parent, which impacts on their capacity to properly parent the child and meet their needs. There may be other reasons.

In some cases, although less common, supervised time may be necessary in an effort to protect a parent against further allegations being made against them.

Before matters get to a final hearing, the Court often does not have all of the evidence it needs on an interim basis to make certain findings. The Court is then faced with the difficult task of balancing the primary considerations, having regard to the additional considerations set out in the Act and having reference to the undisputed facts before the Court at the time of the interim hearing. The conduct of the party seeking to protect the child can also be relevant, and it is important that any concerns are acted upon appropriately.

Can the Court make a final order for supervised time?

It is relatively uncommon for the Courts to make final orders for a parent’s time to be supervised until the child turns 18 years old. However, this can and does occur if the facts of the case warrant it.

One such recent matter was Aston & Gregory [2015] FCCA 318 where issues of alcohol abuse and family violence by the Father were involved. In that case, the Mother asked the Court to make orders that the Father’s time with the child be supervised until the child reached a certain age two years down the track. The Court recognised the difficulty in making such orders, as there was no guarantee that the Father would improve his behaviour in the future, and it may cause issues for the Mother down the track if she had concerns and wanted the orders changed.

What else can be done, if not supervised time?

In addition to, or in place of, supervised time if appropriate, there are other measures that the Court can put in place to seek to protect children during their time with their parents or other significant people. This includes making orders:

  • Restraining a person from consuming illicit drugs or alcohol for a certain period prior to, or during, the children’s time with them
  • Restraining a person from being under the influence of any drugs or alcohol at all during the children’s time with them
  • Restricting a person’s time to day time visits, if some of the concerns relating to risk involve a person’s conduct at night
  • Restraining a person from doing certain things with the children, such as discussing family law or other specific matters with them as it has been demonstrated to cause distress in the past
  • That they ensure that a child is properly fed and clothed during times that they spend with them, and that they ensure that their car is fitted with appropriate safety restraints
  • That they ensure that a child is not left in the unsupervised care of some other person that poses a threat to the child, or that they ensure that the child does not spend time with such person at all

Conclusion

For some people, the decision to propose supervised time is an agonising one. These matters are often not always clear-cut, particularly when a person is still in the cycle of domestic violence. An experienced family lawyer can assist you work through the issues and give you options on how to put your child first and reach a resolution.

With pragmatic and sensible lawyers on both sides, agreements on supervised time or other necessary measures can be reached without having to institute proceedings. This assists in not only diffusing the conflict where possible, but saving everyone a lot of money in costs.

Considering surrogacy?

As a family lawyer, I think it is important to have as much knowledge as possible about what your clients are going through. This helps not just with knowing what advice to give and when, but to be aware of the other service providers out there who can do certain things a lot better than us lawyers.

In the case of surrogacy, this means ensuring that potential surrogates are put in touch with reputable, experienced professionals who are able to guide them through the process from starting to think about this thing called surrogacy, to making the dream a reality.

I recently had the pleasure of visiting the Monash IVF clinic at the Wesley Hospital, Toowong, herein Brisbane, and meeting Nursing Team Leader, Margie Dangerfield.

Monash IVF, like some other clinics in South-East Queensland, has an involved and detailed surrogacy process with best practices at the heart of what they do.

As part of the assessment process at Monash IVF, potential surrogates meet with the Surrogacy/Nurse Co-ordinators first to gather general information to start the process. Patients progress towards all of their relevant information going before the in-house Patient Review Panel. This process alone, before any treatment starts, can take anywhere between about 6 months to 1 year.

The assessment process also includes an appointment with a Fertility Specialist to assess the intended parent(s) and the surrogate, explore options and whether surrogacy is the preferred treatment choice. The surrogate is then referred to an Obstetrician for review and the intended parent(s) may be referred to a Geneticist. Medical testing for the donors is also carried out.

After the police checks and child protection order checks are completed, the next step is to meet with the Monash IVF Counsellor. This is a vitally important step at this stage and the parties will continue to meet with this counsellor throughout. Down the track, the parties must have independent counselling/psychological testing with another person to satisfy the Queensland legislation.

Taking a collaborative approach, the Infertility Specialist, Counsellor and Nurse at Monash IVF all meet to discuss the application, and ensure that all criteria are met.

Then, if advice has not already been sought, enter the lawyers. Under the Surrogacy Act 2010 (Qld), all parties to a surrogacy arrangement must obtain independent legal advice before the surrogacy arrangement is made. There is a lot of information to cover, and many things that potential surrogates and their partner, and intended parents, need to be aware of. If all of the right boxes are not ticked, then the Court may not make a parentage order formalising the arrangement.

The lawyers also prepare a surrogacy arrangement which is required under the Act to be put in writing between the parties and signed by them. Whilst this agreement is not binding, some clinics, such as Monash IVF, require this to be in place prior to treatment commencing. This is important because the agreement must be entered into after the parties have received independent legal advice and counselling, but before the child is conceived.

Then the clinic and the parties get on with the business of making miracles. Many things can go wrong of course, and it is important for all parties to consider the “what if’s” before they occur. Better yet, any shared understandings should be documented in the surrogacy agreement.

Fast forward past the labour and those very early sleepless nights, the parties must approach the Court for a parentage order between 28 days and 6 months after the baby is born to formalise the arrangement (unless the Court gives leave otherwise).

The process for obtaining parentage orders should be managed by a qualified legal practitioner, to ensure that all of the ‘t’s are crossed and the ‘i’s are dotted. This includes filing a number of documents and Affidavits, such as:

  • A copy of the child’s birth certificate
  • A copy of the surrogacy arrangement
  • Detailed affidavits by all parties
  • An affidavit by each of the parties’ lawyers
  • An affidavit by the counsellor who gave the parties counselling before the surrogacy arrangement was made (this can be a counsellor from your clinic as long as they are appropriately qualified, such as the counsellors at Monash IVF)
  • An affidavit by the independent and appropriately qualified counsellor who interviewed the parties for the purposes of the court application. They must also prepare and verify a surrogacy guidance report
  • For each intended parent who is a woman, an affidavit from an appropriately qualified medical practitioner verifying a report given by that practitioner as to why that woman is an eligible woman under the Act (ie. unable to conceive or some other relevant medical grounds)

The process from start to finish can be time consuming and draining in a lot of ways, but no doubt very well worth it. The internal regulations between assisted fertility clinics with respect to surrogacy can vary from clinic to clinic and you should take your time becoming informed about the different services and processes that each clinic offers and has.

Likewise with lawyers, we all have different skill sets which are more suited to some types of matters more than others. I see it as vitally important that surrogacy matters are handled with extra special care due to the different factors at play in reaching an arrangement where someone is willing to provide such a special gift to another person or couple out of the kindness of their heart. As a collaboratively trained lawyer, my approach is to work in tandem with other legal and health professionals and clients alike to reach a common goal, ensuring that my clients’ interests are protected at each stage.

In South-East Queensland, there are a number of assisted fertility clinics that provide services for surrogacy arrangements and I encourage you to make contact with the Nurses there like Margie to explore your options. I wish you the best of luck on your journey.