Family Law – Syllabus Notes

The concept of family law:

 The definition of family under the Family Law Act 1975 (Cth) is the natural
and fundamental group unit of society, especially in relation to children.
 The main function of the family is the care and protection of its members.
Law governs family relationships so as to ensure that people in family
relationships are financially secure and that any children of that relationship
are cared for.
 Under s51 of the Australian Constitution, the federal government has the
power and authority to make laws governing marriage and divorce. The
Marriage Act 1961 (Cth) established the legal requirements of a valid
marriage, while the Family Law Act 1975 (Cth) sets out the legal duties and
obligations that a marriage creates. The principal aim of the Family Law Act
was to reform the law governing the dissolution of a marriage.
 Family law focuses more on reconciliation and on encouraging compliance
than on the use of sanctions or coercion to enforce compliance.

Legal requirements of marriage:

 The modern definition of marriage is defined by the Hyde vs
Hyde/Woodmansee 1866 case as being the voluntary union for life of one
man and one woman, to the exclusion of all others.
Requirements for a valid marriage:
 Gender: Section 5 of the Marriage Act 1961 (Cth) defines marriage as the
union of a man and a woman.
 Marriageable age: a person may marry at the age of 18 (s11 MA 1961). If
either party wanting to get married is between 16-18, they must apply to a
judge/magistrate for an order authorizing the marriage. Such an order will
only be granted in circumstances that are sufficiently ‘exceptional and
unusual’ – including parent’s consent and/or if the couple is shown to be
mature and financially independent. No person under 16 can marry.
 Prohibited relationships: a person cannot marry anyone who is closely
related to them either by blood or by marriage. This means that a person
cannot marry their descendant, ancestor, brother or sister. However, a
person can marry her uncle or his aunt, niece/nephew, or a first cousin.
 Notice of marriage: a couple intended to be married must give a completed
Notice of Intended Marriage form to the authorised marriage celebrant who
will conduct the ceremony.
Void marriages:
 A marriage can be declared void, or invalid, if it fails to meet the definition of
marriage. For example - the parties were of the same-sex, consent was not
freely given by one of the parties; one or both parties at the time of the
marriage were married to someone else.
 A marriage may also become void if the marriage fails to meet the criteria for
a valid marriage. For instance - one or both parties were too young, the
parties are too closely related, the marriage did not meet the requirements
set out in the MA 1961.
Legal consequences and responsibilities of marriage:
 In the event that the relationship breaks down, the law acts to ensure that
the parties to the marriage will fulfill their obligations and resolve any issues
in dispute. It also acts to protect the more vulnerable family members,
notably by ensuring that both parents provide for the welfare of their
children.
Mutual duties of husband and wife:
 Both parties are mutually responsible to one another. The law does not
concern itself with how partners in a marriage carry out their duties and
responsibilities. Generally, the expectation is that both parties will support
each other financially and emotionally and remain faithful.
Maintenance:
 The financial payment made by one spouse to contribute to the care and
welfare of the other spouse to contribute to the care and welfare of the
spouse and/or children of the marriage.
 Under s72 of the FLA 1975 (Cth), if someone is unable to support him or
herself, their spouse is obligated to provide maintenance. Some instances
include – the person has the care and control of a child of the marriage who
is under 18 years old or the person is not able to be employed because of age
or physical/mental incapacity.
 Spousal maintenance is usually only sought after the marriage has ended. It is
usually granted for a limited period, until the spouse gains the ability to be
financially independent. Both parties have a duty to maintain any child of
their marriage.
Property rights:
 The largest asset acquired during a marriage is usually the marital home.
When two people buy a house together, they can choose to own equal
shares in the property (joint tenants), or in unequal shares (tenants in
common).
 Joint tenancy is the more popular option for most married and de facto
couples; if one partner dies, the surviving spouse will inherit the whole
property.
 Any property purchased by one spouse during the marriage remains the
property of the spouse who paid for it. Any property owned by a person prior
to marriage still belongs to that person after marriage.
 Marriage does not automatically change ownership of property. However,
the length of time the parties have been married and the financial and non-
financial contributions, including any improvements made to the property,
will alter ‘ownership’
Contract and agency:
 Any individual can enter into a contract, acting for himself or herself alone.
This is not altered by marriage.
 Just as there is no law that assets become joint property upon marriage, the
same applies to debts in the sole name of one individual: spouses cannot be
held liable for each other’s debts. It is only upon the breakdown of a
marriage that the curt may make orders altering property interest, under the
 FLA 1975 (Cth, s79). In addition, spouses have the right to sue each other in
contract or tort (s119).
Wills:
 A document that states how a person intends to have his or her property
distributed after their death.
 If a person dies without leaving a will, they are considered intestate. In this
case, the Succession Act 2006 (NSW) will apply. This means that the entire
property will go to the surviving spouse, or the spouse and any children of
the marriage. The parents and siblings of the deceased may all inherit if no
valid will exists.

Alternative family relationships:

 Typical family sizes of families have become smaller. Marriage is still the
starting point of a family for many, but de facto and same sex relationships
have become more socially accepted and legally recognised. Single parent
and blended families are becoming more common. Birth technologies and
adoptions are more commonly used these days for same sex couples.
De facto relationships:
 This is a relationship when two people live together in a bona fide domestic
relationship without being legally married.
 Statutory recognition came around in 1984 with the Property (Relationships)
Act 1984 (NSW), or formerly the De Facto Relationships Act 1984 (NSW).
 This act defines a de facto relationship as one that has: Lasted more than two
years, showed commitment and existed in NSW for at least 1/3 of the whole
relationship
 Same‐sex de facto relationships gained legal recognition in 1999 under the
Property (Relationships) Legislation Amendment Act 1999. This act allowed
those who fulfilled the criteria to apply to state courts to divide their
property on the breakdown of the relationship and provided legal recognition
in line with heterosexual de facto couples. Federal and state legislation has
attempted to remove all discrimination against same‐sex couples. However,
they are still unable to marry, demonstrating discrimination.
Single‐parent families
 These kinds of families exist when one parent cares for one or more children.
 They come about in a number of ways: the mother deciding to have a child
without getting married, after a de facto relationship or marriage
breakdowns, one parent cares for the child or one parent may be left
widowed
 Legal issues for single‐parent families include: access to welfare payments,
the right to receive maintenance from their former spouse or partner and the
right not to be discriminated against
Blended families:
 This is one in which a married or de facto couple lives with two or more
children aged from birth to 17 years, of whom at least one is the natural or
adopted child of both members of the couple.
Marriage under Aboriginal and Torres Strait Island law:
 A&TSI customary law marriages are not recognised under Australian law, as
neither meet the legal requirements of marriage.
 Features unacceptable under Australian law include:
o Girls marry at 12 or 13 – minimum age is 18 years
o Duress can be involved
o They’re polygamous
o They can occur between people with a prohibited relationship
o Not considered official until a child is born
 They are generally given the same legal status as de facto relationships
Polygamous marriages:
 Refers to a relationship that is formed when an individual marries more than
one person. While some cultures and religions permit polygamous marriages
overseas, they are not legal in Australia.
 However, under s6 of the FLA 1975 (Cth), a polygamous marriage entered
overseas is deemed to be a marriage for the purpose of children’s matters,
property settlements and other court proceedings under the FLA, meaning
that if the marriage does break down, the parties may seek the legal advice
available to legally married couples in Australia.

Legal rights and obligations of parents and children:

 Within the family, the rights of the child are most important because they are
seen to be the most vulnerable members of the family and as such require
the greatest legal protection.
Parental rights and obligations:
 Parental rights stem from a parent’s position as guardian and they have the
authority to make decisions on: name, residence, education, religion,
citizenship and medical treatment
 Parental statutory authority comes under the Family Law Act 1975 (Cth).
 Changes have occurred within the Family Law Reform Act 1995 (Cth) and the
Family Law (Shared Parenting) Amendment Act 2006 (Cth). These changes
have moved the law away from any notion of children being owned by their
parents. However, parental responsibility diminishes, as their child grows
older.
 Parents are obliged to ensure their child receives an education.
 Parents have the right to discipline their child by using physical force in order
to correct their child’s behaviour, but the physical force must be ‘reasonable,
having regard to the age, health, maturity or other characteristics of the
child, the nature of the alleged misbehaviour or other circumstances’ –
Crimes Act 1900 (NSW), s61AA
Children:
 Children need special care and protection, with governments showing
greater concern with recognising and protecting the right of children.
 Children are not yet regarded as not yet having developed the cognitive
abilities and the capacity to understand the consequences of their actions,
and a considered unable to make fully informed decisions. A child’s ability to
 make their own decisions changes as he or she reaches maturity, and this is
reflected in the law regarding children’s autonomy and rights.
 With the passage of the Status of Children Act 1996 (NSW), ex-nuptial
children were given the same rights as those born to parents who are
married. Subsequent Acts have reinforced the status of ex-nuptial children.
All children have the right to be cared for by their parents.
Convention on the Rights of the Child – UN (1989):
 This convention recognises the fact that children need special care and
protection, and it places special emphasis on the primary caring and
protective responsibility of the family. This convention declares that persons
under 18 years of age must be protected from violence, discrimination,
exploitation and neglect.
 The convention has the object of ensuring that the best interests of children
are met. This purpose also is honoured by the FLA 1975 (Cth).

Adoption:
 The process of transferring parental rights and responsibilities from the
biological parents to the adoptive parents.
 The aim of adoption law is to ensure that the best and most appropriate
parents are found for the child. The needs for the adult are secondary to the
needs of the child. Adoption re-creates the legal relationship between the
child and his or her parents.
Legal requirements and process:
 For adoption to occur, there must be consent from the biological parents.
 If the mother and father are married at the time of adoption, then they both
have to consent. If they’re unmarried then only the mother’s consent is
needed. However, in NSW the father’s consent is needed if the child is from a
de facto relationship.
 Otherwise, the father of an ex‐nuptial child is only to be notified of the
adoption and he then has 14 days to apply for care of the child.
 Children over 12 at the time of the adoption consent to their own adoption.
 An increasing amount of Australians are applying to adopt children born
overseas. Governed by the Hague Convention on the Protection of Children
and Cooperation in Respect of Intercountry Adoption, Australian parents are
allowed to adopt overseas as long as migration checks are fulfilled, including
standard heath checks and the granting of an adoption visa.
 Adopted children are placed on a contact register to allow their biological
parents to be placed in contact with them. The Adoption Act 2000 (NSW)
allows the adopted children to obtain a copy of their original birth certificate,
and the biological parents to obtain a copy of the amended birth certificate.

Divorce:
 The legal dissolution of a marriage. Under s48 of the FLA 1975 (Cth), the only
ground for divorce is the irretrievable breakdown of the marriage.
 In order to prove that the relationship has irretrievably broken down, the
parties must have been living separately and apart for a period of 12 months.
Once divorced, each party is free to marry another person.
  The FLA allows for one period of reconciliation of up to three months during
the period of separation, under s50 (the ‘kiss and make up’ clause). If they do
not succeed in reviving the marriage, the separation period resumes, with
the total time before and after reconciliation counting towards the 12
months.
 If the couple seeking to dissolve their marriage has been married for a period
of time less than 2 years, they must attend family counselling before they can
divorce. Counselling in this situation is compulsory. If the court feels there is
a chance the parties may be reconciled, the court can order marriage
counselling.

Legal consequences of separation:

Children:
 The most difficult part of divorce is which parent the child will live with, how
much time they get to spend with the non‐resident parent and the
responsibility of each parent in child support.
 The focus of the law is not on ‘parental rights’ but rather ‘parental
responsibility’. Parents are responsible for the long-term care of their child
and the presumption is that it is in the best interest of the child for both
parents to share this responsibility equally.
 Divorce proceedings involving children are found under Part VII of the Family
Law Act, with the courts acting in the ‘best interests of the child.’ The best
interests of the child involves: the benefit of both their parents, protecting
the children from physical or psychological harm, children receive adequate
or proper parenting, parents fulfill their duties
 Separating parents are required to attend compulsory family dispute
resolution and enter into a parenting plan, a voluntary agreement, which
most parents are compliant with.
 These plans must consider the practicality of children having equal time with
both parents, contact with other family members, and the day-to-day care of
the children, and ensuring that the children maintain their cultural links.
Property:
 The FLA 1975 (Cth) uses a broad definition of ‘property’. This includes homes,
bank accounts, companies and partnerships, shares, superannuations and
household goods.
 S.79 and s. 75 of the Family Law Act determine the division of property.
 If a couple goes to court for property division, it will consider the
contributions of each partner to the marriage and the future needs of each
party will also be assessed.
 Recent changes to the law now allows for the future needs of de facto
couples to be taken into account in the settlement of property, such as:
financial contributions and non‐financial contributions e.g. house keeping
 Courts assume a 50/50 split as a starting point and then look into factors that
will affect the decision. The longer the marriage, with no children, the more
likely that it will be a 50/50 split.
 If the children are going to live with one parent more of the time, then it is
likely they will get a bigger settlement.
Financial agreements:
 Arose out of individuals’ desire to protect their property rights.
 They can include guidelines for the division of property, debt and other
financial concerns in the event that the relationship ends. Such agreements
tend to diminish the combative nature of separation by removing two of the
main sources of hostility between the parties: money and property.
 Financial agreements (pre-nups) can be made between a couple before or
after the marriage.
 These may prescribe what property is and is not to be included in the
settlement, settle questions relating to how property is to be divided after
the marriage has ended, or establish who owns what property. Financial
agreements can also include provisions as to whether, how and by whom
spousal maintenance is to be paid.

Dealing with domestic violence:

 According to s11 of the Crimes (Domestic Violence and Personal Violence) Act
2007 (NSW), domestic violence is personal violence committed against
someone with whom the offender has, or has had, a domestic relationship.
This includes a marriage, de facto relationships or other close personal
relationships.
 Violence between spouses may take the form of physical, verbal, emotional,
financial, psychological and/or sexual abuse, social isolation, or actual or
threatened violence or harassment. Males tend to commit domestic violence
more than women and the majority of domestic violence victims are women
and children. However, men are also victims of domestic violence.
 Some cases have been so extreme that the wife has actually killed their
spouse. The psychological complex that leads women to do this is known as
‘battered woman’s syndrome’ and can be used as evidence to assist a
defence of self‐ defence or provocation.
Apprehended domestic violence orders (ADVOs):
 Victims of domestic violence can press criminal charges or can apply to the
Local Court for an ADVO, a court order that aims to protect the applicant
from violence and other forms of intimidation or abuse perpetrated by a
family member.
 The ADVO restricts the offenders’ behaviour by prohibiting them from their
victims home or workplace, or being within a certain distance of them.
 Under the original legislation, a person could only seek an order against a
married or de facto spouse. However, these days the legislation has been
extended to include other family members.
Violence involving children:
 Article 19 of the UN Convention on the Rights of the Child declares that no
child should be subjected to violence and it is the responsibility of the state
to protect them from all means of physical or mental violence, neglect or
neglectful treatment, maltreatment or exploitation, including sexual abuse,
while in the care of parents, legal guardians or any other person who has the
care of the child.
  Children can be included on an adult’s ADVO application, or a separate
application can be made for children.
 Under the Children and Young Persons (Care and Protection) Act 1998 (NSW),
certain professionals are required by law to report to Community Services if
they suspect that a child is at risk of harm.
 As time has gone on, the court has recognised the higher risk of violence at
times of separation and the effects this could have upon the child.
Effectiveness of the law in protecting victims of domestic violence:
 Recent educational campaigns have raised community awareness of
domestic violence as an important social issue, and the understanding that
domestic violence is no longer a ‘private matter’.
 Legislative reforms reflect this changing attitude to domestic violence. This
issue is viewed as a community problem, not an individual or isolated
occurrence, and most people now appreciate that reducing its incidence is in
some respects a societal responsibility.
 ADVOs have become an important means of reducing the incidence of
domestic violence. One advantage of these orders is that they are a quick,
inexpensive and accessible form of protection, which are complemented and
supported by the full weight of the criminal law if they are breached.
 It has been argued however, that only those individuals who are normally
law-abiding will comply and that these orders do little to deter individuals
who are persistent offenders. In addition, protection orders can only be
effective if they are policed.

The roles of:

The courts:
 The Family Court of Australia hears matters relating to separation, divorce
and other disputes related to marriage. Its jurisdiction is limited to those
areas controlled by the FLA 1975 (Cth), which include property and financial
matters, maintenance and parenting arrangements.
 The Federal Magistrates Court handles all divorce matters requiring court
assistance, with no allegations of abuse.
 Both the Family Court and the Federal Magistrates Court have the power to
determine matters’ relating to the division of property and maintenance for
both married and de facto couples.
 The Children’s Court hears cases relating to the care and protection of
children under the Children and Young Persons (Care and Protection) Act
1998 (NSW). Such cases are usually brought by Community Services, the
division of the NSW Department of Human Services whose responsibility is
keeping children and young people safe from harm and supporting the
families of children and young people.
Dispute resolution methods:
 Reconciliation counselling: for separating couples who are attempting to
reconcile
 Post-separation parenting programs: for couples whose issues adversely
affect their carrying out of parenting responsibilities. The program usually
 takes the form of family counselling, group lectures and discussions, and
teaching techniques to resolve disputes.
 Mediation: for separating couples who have made an application to the
Family Court, mediation involves a neutral, impartial third party (mediator)
helping them to identify issues, formulate options, consider alternatives and
reach agreements. This service may be used prior to a court hearing.
 The prime emphasis is to provide the best outcome for both parties.
Non-government organisations:
 There are a number of NGOs that provide support for families and individuals
who may be struggling with personal relationships and other family issues.
 Many of the better-known organisations are operated by various religious
groups, such as the Salvation Army, or by churches such as Centrecare and
Anglicare. Other non-religious NGOs include Relationships Australia and the
Smith Family.
 Services provided include mentoring, support for new parents, counselling
and relationship advice, assistance with managing conflict and dealing with
violence in the family, emotional support to children of separating parents,
mediation and advice on creating parenting plans.
The media:
 The media draws public attention to perceived injustices in the system. It has
helped to harden community resolve against domestic violence.
 The Family Law Courts have embraced these new media technologies, placing
‘self-help’ guides, brochures and forms, and links to other sites on their
internet site, and establishing the National Enquiry Centre to answer
telephone and e-mail enquiries about general court proceeding sand
individual cases, as well as referrals to legal advice and other services, and
the provisions of forms and publications.
 The courts have effectively used these new media technologies to provide
better information about rights and obligations under family law, as well as
additional support services.
 They are also aware of the need to protect the privacy of individuals,
restricting how the media publish court proceedings and so balancing the
provision of information and legal direction with protection of personal
information about separating families.
Contemporary issues concerning family law

Issue 1 – Recognition of same-sex relationships:

 The Marriage Act 1961 (Cth) and various state legislations give heterosexual
couples a number of rights and obligations from which same-sex couples are
excluded.
 Although the Sex Discrimination Act 1984 (Cth) and state anti-discrimination
Acts protect heterosexual de factos on the basis of marital status, same-sex
couples do not enjoy the same protection because their legal marital status
remains ‘single’.
 For some same-sex couples, the desire for legal recognition of their
relationship does not necessarily mean that they want the right to be
married. The removal of institutionalized discrimination and the provision of
adequate legal protections may be a more pressing concern.
 In 2004, the Commonwealth Government reaffirmed the traditional concept
of marriage as ‘the union of a man and a woman’, amending the definition in
the Marriage Amendment Act. This means that any same-sex marriage is
automatically void in Australia, including same-sex marriages previously
married in other countries.
 Changes to the law have been slow and haphazard, but the law is gradually
changing.
Legal responses:
 Between 2000-2009, various Australian states and territories introduced a
number of law reforms recognising same-sex relationships in specific areas
however same-sex relationships were still not recognised as having the same
status as a ‘marriage’ under federal laws.
 In 2008, following an Australian Human Rights Commission Report (Same-
Sex: Same Entitlements), the Australian government introduced reforms with
the aim of removing discrimination and providing same-sex couples the same
entitlements as those presently enjoyed by heterosexual de facto couples.
 Since 2008 under the Same-Sex Relationships (Equal Treatment in
Commonwealth Laws – General Law Reform) Act, federal law reforms have
removed areas of discrimination from a range of laws and programs by
amending and/or extending definitions such as ‘de facto partner’, ‘child’,
‘parent’, ‘couple’ and ‘family’ to include same-sex relationships.
o For example, the Health Insurance Act 1973 (Cth) now allows a same-
sex couple and their children to register as a family for Medicare and
receive the same entitlements as a heterosexual couple and their
children. Additional areas amended have been tax, social security,
family law, superannuation, workers’ compensation and child
support.
 The Miscellaneous Acts Amendment (Same-Sex Relationships) Act 2008
(NSW) granted equal parenting rights for the female partners of mothers,
and both are listed as mothers on the child’s birth certificate. This change
gives children born into same-sex relationships equal rights to inheritance
from both ‘parents’ and protects the rights of both mothers in matters
involving the children if the relationship were to end.
  Under the Family Law Amendment (De Facto Financial Matters and Other
Measures) Act 2008 (Cth), property and maintenance matters for separating
homosexual couples are determined by the Family Court or the Federal
Magistrates’ Court.
 The Act extends the definition of ‘de facto’ to include two people who are
not married or related by blood who live together ‘on a genuine basis’. The
Act does not distinguish between a relationship between two people of the
same or opposite sex.
Non-legal responses:
 Responses to the reforms have been varied, ranging from complete support
and criticism of the various state and federal governments for not going far
enough, to individuals and groups who are highly critical of any added
protection of the rights of same-sex couples.
 In 2007, the Commission’s report Same-Sex: Same Entitlements
recommended amending federal laws that discriminated against same-sex
couples and their children in the area of financial and work-related
entitlements and benefits.
 Other groups that actively lobby and campaign for the legal rights and social
equality of gay and lesbian couples include Australian Marriage Equality and
the Gay and Lesbian Rights Lobby.
o Australian Marriage Equality argues that the legally recognised
institution of marriage shouldn’t exclude these couples. A different
classification sends the message that their relationships are of a lesser
standard or character and that the people are second-class citizens.
o The Gay and Lesbian Rights Lobby has a wide-ranging agenda,
including lobbying government and the media to address
discrimination, educating the gay and lesbian community on their
rights and providing referrals to legal and welfare services.
 Most of the lobby groups that oppose equal rights for homosexual couples
have a religious affiliation, such as the Australian Christian Lobby. Under the
current discrimination laws, religious groups continue to be able to
discriminate on the basis of sex, sexuality, race, disability and age.
Responsiveness of the legal system:
 In order to change the law, courts have to be willing to act. A significant
number of politicians must support legislative reform, and there also needs
to be a societal change. Law reform bodies have the task of investigating and
recommending changes.
 The Anti-Discrimination Board of NSW administers the anti-discrimination
laws of NSW. It has made a number of submissions to both state and federal
governments concerning changes to current legislation that are necessary in
order to provide same-sex couples the same legal rights and protections that
are now enjoyed by married couples.
 However, arguments against the recognitions of same-sex relationships
continue to exert an influence in the public sphere. The legislative changes to
de facto entitlements by the Rudd government in 2008, while welcomed, sat
alongside continuing refusal to amend the Marriage Act to permit same-sex
marriage.
  In 2015, Ireland introduced same-sex marriage through a nationwide
referendum. More than 62% voted in favour of legalizing same-sex marriage.
Also in 2015, the US Supreme Court ruled in favour of same-sex marriage
across the entirety of the United States. Nearly two-dozen governments
around the world have introduced legislation allowing same-sex marriage,
with the majority of these are in Europe and the Americas.
Conclusion:
 Both state and federal governments take note of and continue to respond to
issues surrounding discrimination. These issues are not limited to same-sex
relationships. Similar recognition, rights and protections for non-traditional
and alternative or extended family relationships are also needed.

Issue 2 – Surrogacy and birth technologies

 Under common law, the mother of the child is the woman who gave birth to
the child. The father is the man who acknowledges and accepts the
responsibility for the child or who is proven to be the father in court.
 Advances in birth technologies mean that it is no longer possible to presume
the identity of the biological parents. Birth technologies include artificial
insemination, IVF and the use of genetic manipulation.
 Birth technologies have created many legal issues, from paternity to rights of
inheritance to who has care and control of the child.
 For any child conceived via artificial insemination or IVF, the parents (married
or not) are considered to be the legal and natural parents of the child and
have all the obligations of maintaining and caring for the child. Under the
Status of Children Act 1996 (NSW), these children have the same legal status
as children conceived naturally.
 The Status of Children Act created the notion that ‘presumption of paternity’
is automatic and is irrefutable if the couple are married or in a de facto
relationship. Under this act, ‘when a woman becomes pregnant by using
donor sperm from someone other than her husband, then that man is
presumed not to be the father of the child born’.
 However, any such presumption about the sperm donor may be altered if he
makes a written application, signed by the mother and lodged with the
Registry of Births, Deaths and Marriages. If paternity is in dispute, the Act
allows the identity of the father to be determined by blood tests.
Surrogacy:
 Involves an agreement between a commissioning couple and a woman,
where the woman agrees to bear a child for the commissioning couple and
then give the baby to the couple when the child is born.
 Under the law, the woman who gives birth to the child – whether the child is
conceived naturally or artificially – is the mother. Even if the birth mother
uses both donor ova and donor sperm or a donated embryo to achieve the
pregnancy, she is still considered the legal and natural mother of the child.
 The status of the natural mother as the birth mother can be found in the
Status of Children Act 1996 (NSW), the Family Law Act 1975 (Cth) and the
Marriage Act 1961, and under common law. The commissioning couple may
not have any rights to the child.
  Because the child was not conceived within a domestic relationship, the
surrogate mother has exclusive custody rights and she cannot be forced to
give up the child. The natural father has no claim to the child.
 The laws relating to surrogacy differ slightly from state to state. This has
created a great deal of inconsistency, uncertainty and conflict between state
Acts.
 Surrogacy raises many complex social, emotional and parenting issues,
including the legal recognition of genetic parents.
 Commercial surrogacy is an agreement involving a fee or reward paid to the
woman who gives birth to the child, and the transfer of custody and parental
responsibility for the child to another person, by adoption or agreement,
with the child to be treated as the child of that other person. Such
agreements are illegal in NSW under part 4 of the Assisted Reproductive
Technology Act 2007 (NSW).
 Altruistic surrogacy by contrast is the circumstance in which the surrogate
receives no financial payment for the pregnancy or the transfer of the child,
though the commissioning parents may pay expenses related to her
pregnancy and the birth. Altruistic surrogacy remains largely unregulated.
Legal responses:
 The laws concerning surrogacy in Australia are state or territory based.
Aspects of altruistic surrogacy are covered by the Human Tissue Act 1983
(NSW) and more indirectly, issues concerning adoption under the Adoption
Act 2000 (NSW).
 There are only a few provisions addressing surrogacy issues in the Family Law
Act 1975 (Cth). Section 60HB states that if a court has made an order, then
that order is determinative. Section 60H deals with artificial conception
procedures. These sections alone are not adequate to address all of the
potential issues surrounding surrogacy.
 The ACT, VIC and WA have enacted laws to address the issue of the parent-
age of a child born to a surrogate mother. In the ACT and WA, an application
can be made for a court order transferring the status of legal parent from the
surrogate mother and her partner to the commissioning parents. This is
similar to adoption, however adoption orders in these circumstances are not
available in states such as NSW.
 In 2008, the NSW government submitted its views to the NSW Parliamentary
Inquiry into Legislation on Altruistic Surrogacy. The government suggested
that some parts of the regulatory framework for adoption could be used in
forming a prospective framework for surrogacy.
 Alternatively, commissioning parents may apply to the Family Court to adopt
the child under the Family Law Act 1975 (Cth) s60G. Where the child is
conceived in a stable relationship, the male partner is assumed to be the
father even if he was not the biological parent. This would mean that the
child’s biological father has no rights in regards to his child.
 It is illegal for the surrogate mother to ‘give’ her child to the commissioning
parents. Placing a child with a person who is not a relative for more than 28
days is illegal under the Children (Care and Protection) Act 1987 (NSW). If,
 however, one of the commissioning parents were also the biological parent
of the child, this would be permitted.
Re Michael: Surrogacy Arrangements (2009)
 Heard under the Family Law Act because NSW lacks clear state legislation
relating to surrogacy.
 Essential question – ‘Who are the parents of a child born as a result of a
surrogacy agreement?’
 The two biological parents sought an order to adopt their child after the
surrogate mother had given birth to Michael. There was no dispute between
the parties over whom should have custody and responsibility for Michael,
but the court had to determine whether the biological parents were his legal
parents, in order to decide whether or not they could initiate proceedings to
adopt him.
 However, under the Family Law Act, if no orders have been made under state
law regarding parentage, then the child is deemed to be the child of the
woman who gave birth (the ‘birth mother’) and the ‘birth mother’s’ partner,
neither of whom contributed genetic material.
 It was irrelevant that the ‘birth’ parents did not intend to be the legal
parents. Eventhough Michael’s birth certificate named his biological parents
are parents, the court found that the presumption of their parentage based
on the birth certificate was rebutted by the provision in s60H. The court
could not make an order for the biological parent’s adoption of Michael.
However, they could apply to the NSW Supreme Court for an adoption order
under the Adoption Act 2000 (NSW).
Non-legal responses:
 Various organisations and lobby groups have opposed surrogacy on moral
grounds, usually based on religious principles. These concerns centre on the
concept of a traditional family, especially as surrogacy may provide an
avenue for same-sex couples to have children. These lobby groups have
expressed a desire that surrogacy be restricted to infertile heterosexual
couples.
 They have claimed that families with parents of the same-sex face difficulties
ranging from problems accompanying one’s small child of the opposite sex to
a public toilet to social stigma. A slippery slope argument has also been
employed, for example the Australian Christian Lobby’s 2009 claim that
surrogacy “would pave the way for two men or two women or “order” a baby
they are not even genetically connected to”, also denying the child either a
male or a female parent and role model.
Responsiveness of the legal system:
 The federal government has been slow to pass laws relating to surrogacy
issues and the courts are constrained by existing legislation. The Standing
Committee on Law and Justice (NSW) has been asked to examine altruistic
surrogacy arrangements in NSW, in order to:
o Clarify the legal rights and responsibilities of commissioning parents
and birth parents
o Clarify the rights of a child born through surrogacy
 o Determine how to remove inconsistencies between existing state and
federal legislation
 The Standing Committee of Attorneys General, a ministerial council drawn
from state and Commonwealth parliaments and including the NZ Minister of
Justice, has agreed that a national model law regulating surrogacy is needed.
 In 2008, it agreed in principle that the model should have the following
characteristics:
o Commercial surrogacy should remain illegal
o A birth mother cannot be legally compelled to give up the child
o Informed consent of all parties is essential, along with specialist
counselling
o Court orders should be available to recognise the commissioning
parents as the legal parents, where the surrogacy agreement is in the
best interests of the child.
Conclusion:
 Advances in birth technology have created a great need for law reform.
When considering the new laws in this area, both parliaments and the courts
need to address a multitude of conflicting ethical views.
 The rapid development of birth technology has challenged long-standing
moral and legal conceptions of ‘family’ and ‘parent’. Prior to IVF, the woman
who gave birth and her husband or partner were the child’s parents.
However, the legal definition of ‘parent’ has now been extended to meet the
challenges of new family arrangements and technological advances.