The question of who is a parent is what the High Court of Australia was asked to consider when it heard an appeal in April 2019 in the case of Masson v Parsons and Ors.
The child was conceived by way of artificial conception in 2006. The sperm donor (the “Appellant”) was a friend of the Mother. The Mother was not in a relationship with her current parent at the time of conception. The Appellant had been involved in the child’s life since the time of her birth, was registered on her birth certificate and she referred to him as ‘Daddy’.
The Mother formed a same-sex relationship and they wished to relocate to New Zealand with the child. The Mothers sought orders from the Family Court in Newcastle and in October 2017 Justice Clearly found that the Appellant was a parent under the Family Law Act and that they were not able to relocate as this would not be in the best interests of the children.
The Mothers appealed this decision to the Full Court. The Full Court agreed with them and found that the trial Judge had failed to apply the relevant provisions of the New South Wales Status of Children Act 1996 which would result in the Appellant being excluded as a parent of the child.
The Full Court held that the provisions of Section 60H of the Family Law Act did not apply and as a result the State legislation applied and under this legislation the circumstances of conception can result in some men not being considered a parent. This is what happened in this case.
The Appellant sought leave to appeal to the High Court and on 14 December 2018 special leave was granted to determine the question ‘who is a parent under the Family Law Act 1975.
The Constitutional issue resulted in the Commonwealth Solicitor-General intervening to support the Appellant and the Solicitor General of Victoria intervening in the proceedings to support the Mother.
The High Court ruled in favour of the Appellant, overturning the appeal and reinstating the initial Judgment of Justice Clearly. The Court found that the NSW Law was not applicable and the definition under the Commonwealth law should be applied.
What impact this ruling will have on people undertaking surrogacy remains to be seen.
If you have a question about Family Law, call Kate Walker, Accredited Specialist Family Lawyer Mediator on 4324 7699.
With the current Covid 19 Crisis, the Family Court and Federal Court of Australia are now moving to conducting necessary hearings by video link. The following information has has been issued by the Courts to assist in this unusual situation -
GUIDANCE FOR ATTENDANCE OF A WITNESS AT A COURT
HEARING BY VIDEO LINK TO GIVE EVIDENCE
For the purpose of this guidance, a witness includes a party.
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The behaviour and manner of a witness should be the same as if they were attending the Court hearing in person. This includes addressing the judge correctly -“Your Honour” - and counsel politely and courteously.
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The witness will be sworn or affirmed by the judge prior to commencement of their evidence.
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It is expected that the witness has had explained to them the distinction between an oath and an affirmation and be able to say immediately whether they wish to make an oath or an affirmation. If an oath is chosen, the witness should be requested to have available any religious text if they would like to have one.
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A witness is to be alone, in a secure room with doors closed.
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A witness should have recently re-read all affidavits or statements made by him or her in these proceedings and have a clean copy of those documents with them. Counsel will be able to electronically refer the witness to a document through the OneDrive folder or Microsoft Teams.
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The witness is to ensure that there will be no interruptions or distractions for the duration of the video appearance at the hearing.
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A witness may have a glass of water with them but a witness is not to permitted to eat or to drink anything else during the course of the hearing, without permission of the judge to do so.
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The witness may take notes and have pen and blank paper for doing so but the taking of note will not be permitted to impede the flow of the evidence.
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The party cross examining the witness is to ensure that the witness has all documents to which they may be referred. This means that a cross examiner must know in advance what documents will be shown to the witness and ensure that those documents are available to the witness in a timely way. Again, this can be facilitated through the use of a OneDrive folder setup.
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A witness must say when they are fatigued. Having regard to international time zones, a witness should not give evidence when the witness would usually be asleep.
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A witness should dress as if they were attending Court.
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A witness must have the lap top computer used during any test run conducted by the Court.
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Recording the evidence, the proceedings or any part of the proceedings is strictly prohibited and doing so will constitute a contempt of Court
We continue to be available to answer your questions during this time. If you need advice in relation to Separation, Divorce, Property Settlement or Children's matters call Kate Walker, Accredited Specialist Family Lawyer on 4324 7699.
So you've decided to separate. What happens now -
Firstly, the decision to separate from a spouse is a huge decision and should not be made lightly. However, once the decision is made, we would suggest the first steps to take are -
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Communicate your intention to separate with your spouse;
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Note down the date of separation; and
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Contact Centrelink and child support where applicable to advise them of your separation.
What's next?
Following on from your conversation with your spouse, you will need to have a conversation about who will remain in the matrimonial home, who will care for the children, will the matrimonial home be kept by you or your spouse or will the home be sold. These issues will form the basis of any property and children's orders to eventually be filed with the Court in order to formalise your agreement.
You will then need to give some thought to the following -
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Redirecting mail;
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Closing any bank accounts in joint names;
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Opening a bank account in your sole name;
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Discuss how to pay out any joint credit cards;
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Arrange to redirect any salary that may have been going into a joint account to go into an account in your sole name.
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Review your Superannuation, Health Insurance and other Insurance Policies in joint names.
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Work out what is owed on utilities such as water, rates, electricity, telephone etc and bring payment up to date.
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Arrange to change any utilities in joint names into the name of the party who will be responsible in future.
The above is a brief list of matters that will need to be attended to after separation. It is always important to seek expert legal advice from a Family Law Specialist Lawyer. For more information, call Kate Walker, Accredited Family Law Lawyer and Mediator on 4324 7699.
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