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

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.

 

Short but sharp – were we in a de facto relationship?

A lot of people know that to be classed as being in a de facto relationship, for the purposes of a prospective property settlement, you have to have lived together for at least 2 years. What a lot of people don’t know however is that the Court has the power to make property orders even if the de facto relationship was less than 2 years.

This includes cases where one party has made a substantial contribution of the kind referred to in the Family Law Act 1975 (Cth). Also, it must be found on the evidence that the failure to make an order would result in a serious injustice to the applicant.

In the recent Family Court case of Spencer & Speight [2014] FamCA 436, Benjamin J found that a de facto relationship existed between the parties for 16 months, and that the applicant should receive payment of an amount of $75,000 by way of property settlement.

In that case, the applicant said that he should receive a sum of money from the respondent because he paid an amount of $142,000 into the respondent’s mortgage account. For her part, the respondent denied the existence of any de facto relationship and contended that a substantial part of the payment made by the applicant to her was in consideration of driving services rendered by her to the applicant pursuant to a commercial agreement.

The Court found that there was no such contract between the parties. It was also found that the applicant did make a substantial contribution of the kind contemplated in the Act by paying an amount of $142,000 to the respondent’s home loan account during the relationship (even though $50,000 of that was repaid to him since). This was in circumstances where this money represented virtually all of the applicant’s non-superannuation funds.

The next question which faced the Court was whether the failure to make an order or declaration would result in a serious injustice to the applicant. Finding in the respondent’s favour, the Court was satisfied that the applicant had determined to make a commitment to the relationship he had with the respondent and that part of that commitment was to pay this money against the mortgage for the respondent’s home.

Whether or not you are in a de facto relationship at all is sometimes a question of degrees, not solely reliant on whether you live under the same roof. Rather, the Court must consider a number of indicia set out in the Act, including:

  • The nature and extent of their common residence
  • Whether a sexual relationship exists – (a matter of some focus in Spencer & Speight)
  • The degree of financial independent or interdependence, and any arrangements for financial support, between them
  • The degree of mutual commitment to a shared life
  • The care and support of children
  • The reputation and public aspects of the relationship

In these sorts of cases, it is important to get independent legal advice from an experienced family lawyer to take you through what comprises a de facto relationship under the Act and give sound advice on whether you may be entitled to apply for property settlement.

Queensland Law Society Proctor Article – March 2015

Check out the cover of Queensland Law Society’s Proctor March 2015 magazine for my recent article on the legal side of the road less travelled to parenthood.

If you don’t have access to Proctor, you can read a full version of the article here: Proctor March 2015 Cover Article

Thank you to the Queensland Law Society for the opportunity.

The less travelled alternative to adoption & surrogacy

Cases over the last year in the news about overseas surrogacy nightmares has shocked and appalled many Australians, and no doubt people internationally, and brought to the fore not only issues with surrogacy but with adoption in general.

With inter country adoption processing times continuing to increase, and the proportions of infants adopted from overseas continuing to decline, Australians have long searched for other options to become parents to newborns. This is to maximise attachment between child and primary caregiver and provide for a seamless transition from birth mother to intended parents, as early as possible after birth.

The case of Gammy is a sad and stark reminder of the need for clear and agreed boundaries from the outset with any surrogacy agreement. All parties need to be fully informed about the legal and psychosocial implications of bringing a child into the world through surrogacy. For some couples however, the uncertainty involved with the surrogacy process and the varying regulations in place from State to State, can render surrogacy an implausible option for many.

I was involved in a matter where a couple had explored assisted reproductive technology, local adoption and intercountry adoption to add to their family. The couple chose to look closer to home in an effort to become parents to a child as soon as possible after birth. What started as a chance discussion with a long-time friend, my clients were introduced to a child under the age of 16 years who had fallen pregnant and was scared for her unborn child’s future.

Knowing she was not equipped to provide for the child, the teen actively looked for options whereby she could control the process of giving her child up and choose for herself the people who would raise her child. Private adoptions are illegal in Queensland and, as such, birth parents have no final say over who adopts their child.

Alternatives lie however in the Commonwealth family law jurisdiction. I crafted a bespoke process for my clients to obtain parenting orders for the teen’s child after the birth. This process addressed many of the requirements of the Queensland legislative surrogacy process and the Commonwealth legislative framework, ensuring that the health and wellbeing of the teen and her unborn child were the focal point of every step taken. For my clients’ part, their interests remained protected at each stage and they were able to make informed decisions from sound legal advice to control their legal obligations regardless of the outcome.

The process involved multiple reports by a qualified and experienced psychologist, adept to dealing with the surrogacy and family law processes. It also required open communication about the potential realities that could unfold as the pregnancy progressed and the birth day approached, and what lay beyond.

From the later stages of pregnancy to taking the child home from hospital, I assisted my clients in negotiating, agreeing and formalising a parenting arrangement whereby my clients were able to take care of the child within 18 hours of its birth. This enabled bonding to commence almost immediately and ensured all parties were supported in the lead up to obtaining Parenting Orders from the Family Court less than 4 months later.

Had the teen mother gone through the adoption process, she would have delegated final decision making power over her child’s future to a government department. What’s more, the child may have spent a period of time in foster care, unable to be immediately placed with its forever family and potentially placed with a number of primary caregivers in a short period of time.

Had the teen mother seen no other option apart from adoption, she may have felt pressured into parenting a child in less than ideal circumstances. This may have put her and the child at risk of entering the overburdened and under resourced child protection system and becoming another devastating statistic.

Society at large may not be aware of the family law options available for Australians to take responsibility for the care of children closer to home. Such options are outside of the highly regulated adoption process and avoid some of the unknown variables and State-based restrictions associated with surrogacy or caring for a child with often complex needs in the child protection system.

When parties approach the Family Court of Australia or the Federal Circuit Court of Australia for parenting orders of the kind sought by our clients, the paramount consideration for all judicial decision making in such cases is the best interests of the child. The Commonwealth legislative framework has a detailed pathway applied by all judicial officers to ensure that the child’s best interests are met as much as practicable, including the child’s physical, emotional and psychological needs.

As a matter of interest, it makes me question whether increased societal awareness about the alternatives to adoption, particularly within lower socio-economic groups, would lead to a decrease in the high numbers of children in the child protection system.

Surely, it must be a win-win for society to accept responsibility for children born into less than ideal situations to birth parents who know they cannot provide for their child. The option discussed above enables all parties to retain control over the outcome for children, within a framework where the child’s best interests are paramount.