1
Dr Cressida Limon26 June 2013
Richard Thomas CalleyAll correspondence to:Telephone 03 9781 4222
B.Ec., LL.B., A.S.L.I.V. (FAMILY LAW)PO Box 821Facsimile 03 9781 3850
Frankston, Victoria, 3199Email
Adrian Stone
B.Ec., LL.B., A.S.L.I.V. (FAMILY LAW)
Kathryn Downs
B.A., LL.B., A.S.L.I.V. (FAMILY LAW)
Vic Rajah
B.A., LL.B.(HONS), A.S.L.I.V. (FAMILY LAW)
Paul Boers
LL.B., A.S.L..I.V. (FAMILY LAW)
Kristin Shergold
B.A., LL.B.
Daniel Myers
LL.B. (HONS)
Leila Taefi
B.A., LL.B., Dip.Ed.
Our ref:PMB:ld
26 June 2013
Dr Cressida LimonBy email:
Research Fellow
Melbourne Law School
University of Melbourne
VICTORIA 3010
Dear Dr Limon,
FAMILY LAW COUNCIL TERMS OF REFERENCE – REVIEW OF PARENTAGE LAWS
I wish to make some submissions concerning the Family Law Council Terms of Reference in relation to the review of parentage laws.
Firstly I would like to provide you with an introduction to myself and my background. I am a solicitor in private practice employed by Richard Calley Family Lawyers. I am an Accredited Specialist (Family Law). Originally I am from Brisbane but for 18 years lived and practised in Sydney in the private profession and for the Legal Aid Commission. From 1999 to 2003 I worked for the Family Court of Australia as a Deputy Registrar, initially in the Melbourne registry (whilst I briefly lived in Melbourne) and then in the Sydney registry. For 13 years I volunteered at the Inner City Legal Centre in Sydney, initially in relation to general family law matters and then exclusively in its gay and lesbian advice service. The Inner City Legal Centre was originally located in Oxford Street but in recent years relocated to Kings Cross. It has always drawn a large gay and lesbian clientele.
More recently, I have played a significant role in establishing a LGBTIQ advice service in relation to family law matters at the Fitzroy Legal Service.
When I volunteered at the Inner City Legal Centre in Sydney, I was appointed a Board member and was eventually elected Co-Chair of the Board of Directors. For my volunteer work at the Inner City Legal Centre in Sydney, I was awarded a New South Wales Law and Justice Foundation award in 2006.
My experiences through the Inner City Legal Centre in Sydney and the Fitzroy Legal Service in Melbourne have placed me in a unique position to observe the family law issues important and relevant to the LGBTIQ community. One of the most common issues involves same sex parenting including issues of parentage arising out of artificial conception. It is through this work that I have developed specialist expertise in the areas of same sex parenting, artificial conception and surrogacy. I have written articles and papers, and presented seminars, about same sex parenting issues quite extensively.
I do not make my submissions on behalf of any organisation, and the views expressed herein are entirely are my own.
I deal with each of the Terms of Reference as follows.
- Whether the provisions of Part VII of the Family Law Act that deal with the parentage of children lead to outcomes that are appropriate, non-discriminatory and consistent for children
It is useful to first deal with how the relevant presumptions of parentage operate.
From my perspective, the presumptions of parentage which warrant further consideration involve those arising out of artificial conception, surrogacy, and being named on a birth certificate of a child.
The word “parent” is given a definition in S.4 of the Family Law Act as follows: -
parent, when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child.
This definition is confined to cases involving adoption, and where children are conceived in other circumstances we need to look to the sections dealing with presumptions of parentage.
Presumptions of parentage arising out of artificial conception are dealt with by Section 60H of the Family Law Act as follows:
“FAMILY LAW ACT 1975 - SECT 60H
Children born as a result of artificial conception procedures
(1) If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and
(b) either:
(i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
(ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
(c) the child is the child of the woman and of the other intended parent; and
(d) if a person other than the woman and the other intended parent provided genetic material--the child is not the child of that person.
(2)If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;
then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.
(3) If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;
then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.
(5) For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conceptionprocedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.
(6)In this section:
"this Act" includes:
(a) the standard Rules of Court; and
(b) the related Federal MagistratesRules.”
Presumptions of parentage arising out of surrogacy arrangements are dealt with by Section 60HB of the Family Law Act as follows:
“FAMILY LAW ACT 1975 - SECT 60HB
Children born under surrogacy arrangements
(1)If a court has made an order under a prescribed law of a State or Territory to the effect that:
(a) a child is the child of one or more persons; or
(b) each of one or more persons is a parent of a child;
then, for the purposes of this Act, the child is the child of each of those persons.
(2)In this section:
"this Act" includes:
(a) the standard Rules of Court; and
(b) the related Federal Circuit CourtRules.“
Presumptions of parentage arising out of registration on a birth certificate are dealt with by Section 69R of the Family LawAct as follows:
“FAMILY LAW ACT 1975 - SECT 69R
Presumption of parentage arising from registration of birth
If a person's name is entered as a parent of a child in a register of births or parentageinformation kept under a law of the Commonwealth or of a State, Territory or prescribed overseasjurisdiction, the person is presumed to be a parent of the child.”
Whether a person is deemed a parent will have an influence on how any parenting dispute is determined in the event of a relationship breakdown.
Presumption arising out of artificial conception
Where a child is conceived by way of artificial conception, Section 60H will presume the birth mother of the child to be the parent of the child. It does not matter if the genetic material for the child is not provided by the birth mother. If the birth mother was in a marriage or de facto relationship, including a same sex relationship, at the time of conception, and her married or de facto partner consented to the procedure, then the married or de facto partner is also presumed a parent of the child. It does not matter that the married or de facto partner may not have provided the genetic material for the child.
‘
The effect of Section 60H(1)(d) is that if a person provided genetic material for the conception of the child, and that person is not in a marriage or de facto relationship with the birth mother, then the child is not a child of that person. The wording of this sub-section does not say this person is not a “parent”. However, the cases of re Mark: anapplication relating to parental responsibilities[1] and Ellison Anor Karnchanit[2] held that the wording of Section 60H does not narrow the categories of persons who can be deemed a parent of a child conceived by way of an artificial conception procedure, rather it enlarged the categories of persons. In re:Mark the Court found at that time in the absence of a definition of the word “parent” in the Family Law Act or a section specifically dealing with the status of a sperm donor, the common law definition of “parent” can be applied. In that case, the Court found the Oxford Dictionary meaning of “parent” was a person who has born or begotten a child. In re:Mark, the sperm donor in that case provided his genetic material with the express intention that a child would be conceived that he would parent. However the Court in that case did not make a finding that he was a parent.
Whilst the donor of genetic material for a child conceived artificially is generally not deemed a parent of the child, there are circumstances where that person can be found to be a parent. See Groth & Banks[3] where a sperm donor was ruled to be a parent in circumstances where he provided the sperm donation to a single woman with whom he was not in a relationship, but with the intention he would co-parent the child. The Court was able to rule he was a parent as there was no other person with a presumption of parentage, apart from the birth mother, in their favour, noting that by the language used in various sections of the Family Law Act there can only be two parents of a child.
In Ellison & Anor & Karnchanit, a case involving a commercial surrogacy arrangement, the Court made a declaration of parentage in favour of the intended parent who provided the sperm donation for the children in that case. However, whether the Court can or should make a declaration of parentage in a surrogacy case in favour of the sperm donor has been thrown into doubt by the recent decision in Mason & Mason & Anor[4], where the Court declined to make a declaration of parentage in favour of the sperm donor, who was also one of the intended parents.
It would therefore seem that the status of an intended parent who provided a sperm or ovum donation for a child conceived through a surrogacy agreement, is that neither person will be deemed the parent under Section 60H of the Family Law Act unless the birth mother was not in a marriage or de facto relationship at the time of conception and the donation was made with the intention that the donor would also parent the child.
In the case of a parenting dispute upon the breakdown of a relationship, whether you are a parent will have an impact on how the dispute will be determined.
When a married couple has a child conceived through an artificial conception procedure where the wife is the birth mother, they both have an irrebuttable presumption of parentage in their favour. If their relationship broke down, and a Court was asked to determine a parenting dispute, the Court must apply a presumption that it is in the best interests for the child and the child’s parents to have equal shared parental responsibility for the child[5]. The Court is then required to determine whether an equal time arrangement is in the best interests of the child and reasonably practicable[6]. If the Court determines that an equal time arrangement is not in the best interests of the child, then it is required to consider whether substantial and significant time with his or her parents would be in the child’s best interests[7].
Before the legislative pathway applying to married couples can apply to a de facto couple, whether same sex or opposite sex, the Court has to first consider whether there was a de facto relationship at the time of the conception of the child. In doing so, the Court needs to consider the factors relevant to the definition of a de facto relationship set out in Section 4AA of the Family Law Act as follows:
“FAMILY LAW ACT 1975 - SECT 4AA
De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6) For the purposes of subsection (1), 2 persons are related by family if:
(a) one is the child (including an adoptedchild) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.”
The case of Aldridge & Keaton[8] illustrates how the issue of whether a de facto relationship existed at the time of conception can lead to the Court following a different pathway in determining parenting cases. I was fortunate enough to have been involved in that case. In that case, the parties were in a lesbian relationship. The respondent was the birth mother of the child conceived through IVF. Facts relevant to whether there was a de facto relationship included: -
- both parties were in a relationship at the time of conception and lived with one another;
- they held separate bank accounts;
- they did not cook meals for one another because neither liked to cook and instead ate out or ate takeaway meals;
- they were residing together in the respondent’s apartment whilst the applicant’s apartment was being renovated and converted from 1 bedroom to 2 bedrooms so as to accommodate both women and the child;
- both parties selected various white goods for the applicant’s apartment;
- they presented themselves to friends and family as a couple;
- they both attended at an IVF clinic as a couple.
However, there was evidence that prior to conception of the applicant encouraging the respondent to experience parenthood. There was evidence in one discussion of a comment by the applicant to the respondent to the effect that “I will be as much of or as little a part of your child’s life as you want me to”. The Chief Federal Magistrate at the time, who heard the case, interpreted that as being evidence of there not being a mutual commitment to share a life with one another. It is submitted that comment by the applicant in Aldridge & Keaton can be interpreted a number of ways. Being a member of the gay and lesbian community, and being a lay person not aware of any remedies available in family law matters, the applicant understood that in the eyes of the law, she was not a parent or any other relation for that matter, and all of the parental responsibility would fall squarely on the birth mother.
In Aldridge & Keaton the Court found that the applicant, not being in a de facto relationship with the respondent at the time of conception, was not a parent. The Court was therefore not required to follow the legislative pathway starting with Section 65DAA. The Court did not need make any consideration of whether an equal time arrangement would be in the child’s best interests, nor a substantial and significant time arrangement. The outcome at the first instance hearing was that the applicant was granted limited time with the child.
In my view, having to decide whether there was a de facto relationship at the time of conception before one party can be deemed a parent has led to an outcome that is not appropriate for this child compared with, for example, if the parties were an opposite sex married couple. In Aldridge & Keaton the parties lived with one another after the birth of the child. The nature of the parties’ relationship at the time of conception, whether it was a de facto relationship or not, is irrelevant to the child and to the nature of that child’s relationship with the applicant, yet the outcome as determined by the Court was different to if they were both deemed parents..
Same sex de facto relationships and birth registration
In all the States and Territories of Australia, it is now possible for both women of a lesbian couple to be named on the birth certificate of a child conceived by way of an artificial conception procedure. The naming of the non-birth mother on the birth certificate is optional and by consent. Technically it is possible that the women were not in a de facto relationship at the time of an artificial conception procedure, thereby not attracting a presumption of parentage under Section 60H. However, Section 69R would give them both a presumption of parentage if the birth registration took place in Australia given that it applies to birth certificates issued from a State or Territory of Australia.