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Sixth Edition ALL PINK UNDERLINED TEXT IS A CLICKABLE
LINK. LINKS FOLLOWED BY AN ARROW ( Nicholes Family Lawyers Telephone: + 613 9670 4122 Welcome. Welcome to our July edition of the Nicholes Newsletter! News & Events:
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Based on research on the costs of children shared parenting, best interests of parents and children. The new treat both parents’ incomes and living costs more equally and the fact that older children cost more. Also ensures that children from first and second families will be treated more equally. In the second reading speech the minister said: New formula based on principal that parents should share rateably in the costs of the child. This requires a number of changes: 1. There is now a ‘costs of children’ table said to be based upon available research. 2. Parents share costs rateably on the basis of their income. 3. Proportions of care must be ascertained for rateable apportionment of expenditure. Adjusted Taxable Income Tax free pension or benefit a. Disability support b. Wife pension c. Carer payment d. Invalidity service pension e. A partner service pension f. Income support supplement under Part IIIA Costs of Children Table Weekly rates
CHILD SUPPORT AND FOSTER CARE Instead of receiving child support payments, foster parents who are not related to the child generally receive a fortnightly, non-taxable allowance from the Department of Human Services to assist with the child’s food, clothing and living expenses. Additional financial support may also be available if the child is placed in a foster family by the Victorian Child Protection Service—for example, reimbursement for special medical, educational or counselling expenses. CHILD SUPPORT REFORMS AT A GLANCE On 1 July 2008, Stage 3 of the Child Support Reforms will come into place. Item 5 of the Schedule will introduce two types of Child Support Agreements: Binding and Limited Agreements. Binding Child Support Agreements must include a certification that each party has received independent legal advice regarding the agreement. Item 74 provides that before 1 July 2008, the Registrar must review every Child Support Agreement that will be in force before or after that day, and determine whether this should be taken as a Binding Child Support Agreement, or terminated. A determination that the Agreement should be binding will take effect on 1 July 2008 under Item 75(4)(a). Child Support Agreements determined to be binding by the Registrar may be terminated by written agreement between the parties. The Amendments also facilitate capitalised Child Support Payments, for example, by providing for parties to pay child support by transferring properties to the former spouse. This is beneficial as it will allow parties to take a more flexible and practical approach to child support, often to the advantage of both parties… however, it also runs a risk by minimising the role of the Child Support Agency and Family Court in assessing appropriate maintenance. This is especially relevant considering that the Amendment will also make Binding Child Support Agreements difficult to alter. Item 28 of the Schedule outlines the Court’s power to set aside the Child Support Agreements that have been accepted by the Registrar. Such Agreements can only be set aside for reasons of fraud, duress, non-disclosure, undue influence, significant change of circumstances, or where the agreement’s annual child support rate is not proper or adequate. THE VICTORIAN LAW REFORM COMMISSION (VLRC) RECENTLY PRODUCED THEIR FINAL REPORT ON Assisted The terms of reference for the VLRC were to enquire into the desirability and feasibility of amendments to the Infertility Treatment Act 1995 and the Adoption Act 1984. The report is comprehensive and made one hundred and thirty (130) recommendations to the State Government of Victoria. Some of the recommendations include that: • The best interests of the child must be the paramount consideration in all decisions concerning assisted reproductive technology (ART). The assessment of the best interests of the child should be based on objective and verifiable risk factors. Hence, if a person has been convicted of sexual or violent offences and had previously had children removed from their care they may pose a risk of harm to a prospective child. Not surprising, a review of available research about outcomes for children borne as a result of ART found that parents sexuality or marital status are not key determinants of a child’s best interest. • The Infertility Treatment Act 1995 should be amended to prevent discrimination of women on the basis of their marital status (single), their sexual orientation, race or religion. The current marital status requirement is contrary to the principles of equality as set out in Victoria’s Charter of Human Rights and Responsibilities. To avoid any doubt the Infertility Treatment Act 1995 should set out clear guiding principles regarding the administration of the Act. • The definition under the current Infertility Treatment Act 1995 relating to “unlikely to become pregnant” should be expanded to include reasons other than clinical infertility. It is recommended that the appropriate test be “in the circumstances in which she finds herself, unlikely to become pregnant other than by a treatment procedure”. This would allow women who are single or who are in a same-sex relationship to be eligible to receive treatment. • The adoption legislation to be amended to allow same sex couples to adopt children. • Where children are born to same sex couples, the non-birth mother should be entitled to be registered on the Register of Births, and to be presumed to be a parent of the child. Additionally, non-birth mothers should be able to apply to amend the child’s Birth Certificate to name her as a parent. • Where a non-birth mother is the domestic partner of the mother of the child and she consented to the treatment procedure by which the mother conceived the child at the time the procedure was carried out, then the non-birth mother should be presumed for all purposes to be a parent of the child. • Reproductive clinics should be available for surrogacy arrangements. Parties in a surrogacy arrangement should receive counselling and legal advice. Persons who have commissioned a surrogacy arrangement should be recognised as the child’s parents as long as the surrogate mother agrees and a Court agrees it is in the best interests of the child. Where this occurs the parents should be recognised and be able to register their names on the child’s Birth Certificate. • Amendments to the Status of Children Act 1974 should occur to allow for substitute parentage orders in favour of a person or couple who have commissioned a surrogacy arrangement. Once a substitute parentage order has been made the Birth Register should be amended to record the new details and a new Birth Certificate should be issued. • For those women who wish to self-inseminate with sperm from known donors, clinics should be permitted to screen and store sperm for the women. • Where a woman becomes pregnant as the result of donor sperm the man who donated the sperm should be presumed for all purposes not to be the father of any child born as a result of the pregnancy. This does not mean that donors cannot or should not be a part of the child’s life; this is a matter to be discussed, planned and negotiated within each family. Arrangements for a parenting role for donors can be formalised through Parenting Orders from the Family Court. Where the woman becomes pregnant as a result of a donated egg, she should be conclusively presumed to be the mother of any child born as a result of the pregnancy. The women who donated the egg should be presumed not to be the mother of any child born as a result of the pregnancy. Over the last five decades, developments in both science and social perceptions have transformed the ways babies can be made. Procedures such as artificial insemination have increased the use of traditional surrogacy, where the surrogate is the genetic mother of the child. IVF has also introduced gestational surrogacy, where the surrogate carries the fertilised egg of another woman. The law regulates three main areas of surrogacy: access to assisted reproductive technologies (ART), surrogacy agreements and parentage of the child. In both Australia and the United States of America, laws regulating these matters come under state jurisdiction. As a whole, the USA’s laws are more progressive than Australia’s. However, in 2008 Victoria is scheduled to overhaul its legislation to adopt an approach similar to the USA’s in several aspects. Accessing ART Traditionally, the USA has been more liberal than Australia regarding access to ART. New Hampshire is their only state that explicitly restricts eligibility for ART and none of the other states’ statutes expressly deny ART to single women. This does not necessarily reflect practice, however, as one study found that 20 percent of ART service providers said they would be very likely to turn away single women. Meanwhile currently in Victoria, South Australia and Western Australia ART can only be provided to women who are considered ‘medically infertile’. Victoria and South Australia further require that the woman is in a heterosexual couple, although this has been successfully challenged in court for discriminating against women on the basis of marital status. These laws are problematic as they apply to the woman accessing treatment… so it is the surrogate, not the intended parents, who must be medically infertile (and in a heterosexual couple if relevant). The Victorian Law Reform Commission’s 2007 report highlighted this anomaly and the scheduled legislative changes seek to remedy it. These changes will effectively legalise altruistic surrogacy in Victoria by applying the infertility requirement to the couple seeking children, not the surrogate. The changes will also allow single and lesbian women to access ART, even if they are medically fertile. Surrogacy Arrangements Despite these changes, Australia will remain far behind the USA in the law regarding the practice of surrogacy itself. In Victoria, NSW, Queensland, Tasmania and South Australia surrogacy agreements are void and advertisements are prohibited, and in all these states except South Australia payments for surrogacy are punishable by imprisonment. As restrictive as these provisions seem, options for surrogacy are a little more flexible in practice in Australia. For example, prohibition of payments arguably does not ban reasonable compensation for costs such as medical expenses. Moreover, there is trend of increasing approval of altruistic surrogacy arrangements. As outlined, Victoria’s law changes will facilitate altruistic surrogacy, as does the lack of legislation in Queensland, NSW and Tasmania. Moreover, several judicial decisions recognise surrogacy agreements and implicitly ‘refuse to condemn’ surrogacy. However even if this trend continues, it is not likely that Australia’s law will progress as far as the USA’s has. On one hand, surrogacy agreements are either prohibited or unenforceable in eight of the USA’s states and payments to surrogates are prohibited in New Mexico, Utah and Washington. These laws are of limited effect, however, because of the Massachusetts case R.R. v M.H. Most cases to date have followed this finding that the applicable law is that of the state in which the surrogate resides. Therefore, intended parents can avoid restrictions by traveling to or finding a surrogate in another state where the procedures are legal. Moreover making such arrangements is easier in the USA than Australia, as many of its states permit commercial surrogacy practices and services. Consequently there are dozens of surrogacy agencies and networks which facilitate the whole process for the intended parents. Parentage Even if all these services were made available in Australia, the intended parents would still be presented with difficulties regarding the legal parentage of the child. In NSW, Tasmania, Queensland and South Australia the birth mother and her husband are presumed to be the child’s parents, regardless of their genetic relationship. In NSW a male de facto partner is also presumed to be the father, and in Western Australia a birth mother’s female partner is recognised as a parent. These laws are obviously very troubling for surrogacy practices, as the intended parents will not be legally recognised unless they are allowed to undergo a lengthy private adoption process. By exception, courts in the Australian Capital Territory can make parenting orders in favour of the intended parents without imposing adoption criteria. Similarly Victoria’s new legislation will allow the County Court to order that the intended parents—including a female partner of the biological mother—be listed on the birth certificate, provided this is in the child’s best interests and the surrogate mother freely consents. The USA also has a broad range of law regarding parentage from state to state. Many jurisdictions in the USA presume that the child’s parents are its birth mother and her husband. Legislation in Arizona, North Dakota and Utah offer no rebuttal to this presumption. In Virginia and Florida, the court will order that the intended parents be listed on the birth certificate provided that one of the parents is genetically related to the child and there is an approved surrogacy contract, which can only be entered by heterosexual married couples. In New York, the court must decide parentage issues with regard to the case’s circumstances. Some more progressive schemes include Illinois’ legislation which gives intended parents (including same-sex couples) sole custody and full parental rights from birth if the child is born through gestational surrogacy and one of the intended parents is also a biological parent. New Hampshire allows intended parents to be listed on the birth certificate unless the surrogate exercises her rights within 72 hours of the birth. Similarly Pennsylvania’s Department of Health has developed a register which courts can use to order that intended parents be automatically listed on the birth certificate in gestational surrogate cases. Surrogacy is also facilitated in California, where courts often determine whether intended parents should be listed on birth certificates by referring to the intentions as set out by the surrogacy contract. As this shows, both countries have very diverse regulations and practices regarding the many aspects of surrogacy, however the USA’s law is consistently more progressive than Australia’s. Changes to Australia’s law ‘catch up’ to widespread practices in the USA, rather than overtake them. Victoria’s new laws exemplify this. They provide a significant step towards uniform recognition of altruistic surrogacy throughout Australia, yet continue Australia’s stance against the commercialisation of surrogacy and services which has long been practiced in the USA.
SUMMARY The Bill has two main sections. Firstly it establishes a Relationships Register, which will allow domestic couples in Victoria to register their relationship with the Registrar of Births, Deaths and Marriages. Registration will provide conclusive proof of a domestic relationship, making it easier for domestic partners to access their rights under Victorian law. The Bill also sets out statutory requirements for property matters where a domestic relationship has broken down. This provides for Relationship Agreements, adjustment of property interests between domestic partners and a maintenance scheme. The Bill repeals Part XI Property Law Act 1958 which currently regulates these matters. RELATIONSHIPS REGISTER • What can be registered? • Who may apply? • Revocation of registration • Accessing information DOMESTIC PARTNER PROPERTY MATTERS • Relationship Agreements To have effect, the relationship agreements must be signed, in writing, and accompanied by a legal practitioner’s certificate stating that independent legal advice was provided to the party. • Property interests and maintenance The Bill gives the Supreme, County and Magistrates’ Courts jurisdiction for property and maintenance matters. With regard to maintenance, the court may make an order where the applicant domestic partners cannot adequately support themselves due to reasons arising from the relationship, such as reduced earning capacity. The maintenance order should be made with regard to the partners’ resources and incomes, financial needs and obligations to support others. Domestic partners cannot apply for maintenance orders if they are in a domestic relationship with another party or have married. Maintenance orders will cease if the benefiting party marries or registers another domestic relationship. In these matters, the Bill gives the court power to order a transfer of property, payment of lump or periodic sums, or impose any orders or injunctions necessary for justice. • Who is a ‘domestic partner’? The added difficulties in satisfying these criteria highlight the benefit of establishing the Register to provide conclusive evidence of a domestic partnership. If you have any family law queries or questions arising from this Newsletter, please do not hesitate to contact our office.
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June 2008
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