Family Law Essay Plan

ALTERNATIVE FAMILIES
SAME-SEX LEGISLATION: Same-Sex Relations (Equal Treatment in Commonwealth Laws- General Law Reform)
Act 2008 (Cth)
Radical, federal law reform. Removed areas of discrimination from a range of laws and programs
(Health Insurance Act 1973 (Cth)) by amending or extending legislative definitions such as ‘de facto
partner’, ‘child’, ‘parent’, ‘couple’ and ‘family’ to include same-sex relationships. Provided same-
sex couples with equal rights and abolished discrimination in regard to several fields, such as
access to health care. Also altered the definitions of several terms to include same-sex
relationships, this changing the nature of parental responsibility as well as including and
recognising the legitimacy of same-sex relationships and families.
CASE: Hope & Brown v NIB Health Funds 1994
Recognition of same-sex couples for family health insurance. Court ruled it was discrimination.
Despite there being no marriage, they were in a state of financial dependency, with a child, and
sharing mortgages, funds etc. Changes in definition of family (parental responsibility). Necessity
of marriage to be a family challenged in addition to circumstances of the gender of parents being
altered. Precedent. However, no formal change/radical reform until 2008. Several minor reforms,
however, continued following this case.
STATISTIC:
INTERNATIONAL INSTRUMENT: ICCPR Article 26
Articles 2 (freedom from discrimination) and 7 of UDHR and Article 26 of ICCPR
NON-LEGAL RESPONSE: Australian Human Rights Commission 2008 report “Same-Sex: Same
Entitlements”
Outlined areas of same-sex disadvantage and inequality, encourage law reform. All persons are
equal before the law and are entitled without any discrimination to the equal protection of the law.
In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground. ICCPR Article 26. Impetus for change.
Led to huge successful and important reforms. Article based on previous legislative disregard for
article 26 of the ICCPR, which states that everyone is equal in the eyes of the law (RULE OF LAW
TOO) and should be free from legal discrimination. This report highlighted legislative
 inconsistencies and issues, ultimately leading to reforms listed above.
IMPACT:
BLENDED LEGISLATION: Assisted Reproductive Technology Act 2007 NSW
Under this legislation, a sperm donor cannot be the parent of the conceived child. Due to
presumption of parentage, the mother is the assumed parent.
CASE: Masson v Parsons High Court 2019
Robert Masson and Susan Parsons (their court pseudonyms) had been friends for decades before
deciding to “privately and informally” conceive a child in December 2006. According to court
documents, Masson was involved in the girl’s life from birth and developed a close relationship
with her, including overnight visits and attending school performances. Masson was listed as the
father on the girl’s birth certificate, and she refers to him as “Daddy.”
After the girl was born, Parsons had a second child with her partner, who is not biologically
related to Masson. In 2015, Parsons married her partner in New Zealand and wanted to relocate
there permanently with the two children. Masson took legal action to prevent the women from
moving, a move that would have effectively separated him from his biological daughter.
In 2017, Justice Margaret Cleary of the family court prevented the mothers from relocating to New
Zealand, finding that the two women were not in a de facto relationship at the time the girl was
conceived. Masson was recognised as the child’s legal parent based on a section of the
Commonwealth Family Law Act 1975 that deals with the parentage of children born via artificial
conception procedures. In her ruling, Cleary gave weight to Masson’s intentions when the girl was
conceived and his subsequent involvement in her life.
On appeal, the mothers argued that Cleary failed to consider a section of the NSW Status of
Children Act 1996 which states: If a woman (whether married or unmarried) becomes pregnant by
means of a fertilisation procedure using any sperm obtained from a man who is not her husband,
that man is presumed not to be the father of any child born as a result of the pregnancy.
The full family court agreed with this argument and found that this section of the state act must be
applied when questions of parentage arise in a federal court.
Masson filed an appeal to the High Court earlier this year. In an unusual step, both the
Commonwealth and Victorian attorneys-general filed notices of intervention to argue which laws
they believed should apply when determining parentage rights in sperm donor cases. (Victoria
intervened because it had an interest in making sure state law was applied, even though the case
 originated in NSW.)
In 2019, in a case that has set precedent, due to Masson's involvement in the child's life the High
Court declared that it is in the best interest of the child for the family to stray in Australia. It was
considered that he met the federal definition of a parent.
STATISTIC: The Conversation 2018
Blended families are a small proportion of modern Australian family forms, accounting for just
over 3.7% of all families.
INTERNATIONAL INSTRUMENT:
NON-LEGAL RESPONSE: The Conversation 2019
Can a sperm donor be a legal parent? In landmark decision, the High Court says yes
IMPACT:
DIVORCE/CHILDREN LEGISLATION: Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011
(Cth)
Legislation recognises the need to protect children from harm and aims to improve the court’s
responses to family violence by providing better information concerning the existence or risk of
family violence. This allows for the court to make provisions for the child’s safety in future
parenting arrangements. In relation to divorce, decisions must be made with the best interest of
the child in mind, aiming to remove them from harmful environments.
CASE: Mr and Mrs Perri
A violent man was granted sole custody of his son because he was deemed to be more capable
than the boy's mother, who was rebuked for allegedly trying to turn the child against his father.
Among the reasons the Family Court gave for choosing the father to be sole carer is because he
was unemployed and, therefore, could "devote all his time to the care of the child", compared with
the mother, who worked part-time. In an extremely unusual case, Judge Stewart Austin found the
parents were so toxic towards each other that it was in the child's best interests to eliminate one
from his life entirely. Judge Austin chose in favour of the father, despite the man having numerous
domestic violence convictions, and said the mother's relationship with the boy, who was 10 at the
time of the judgment, could be "revived" later in life.Critics of the Family Court say the 2014
judgment, which is about to be challenged in court, is part of a disturbing trend whereby the court
sees a parent who is supposedly alienating the other parent as worse than an abusive parent.
The parents, given the pseudonyms Mr and Ms Perri, have been in and out of the Family Court
 since their relationship ended in 2009. Each blames the other for the boy's distress. In 2011, at a
time Mr Perri was on an apprehended violence order and a good behaviour bond for domestic
violence offences, the court ordered the boy live with his father and have supervised visits with
his mother. The boy's behaviour deteriorated to the point where he was severely disturbed and
was self-harming, running away from school and hurting other children. In the most recent
judgment, Judge Austin decided to cut all the boy's contact with his mother, including letters and
phone calls. He found that the boy's deterioration was due to the looming court case, rather than
the father's deficiency, and it would be exacerbated by disrupting his living situation. He said Ms
Perri's capacity to care for the child was inferior, partly because she worked part-time and did not
have a detailed plan for improving the boy's life. She was also reluctant to believe her son's claim
that his older half-sibling had sexually assaulted him, despite the police believing it was probably
true. She removed the half-sibling from their home, but believed the assault could not have
happened because the boy was away at the time of the alleged incident.
STATISTIC: SMH
In 2017, more than half of all divorce cases involved children.
INTERNATIONAL INSTRUMENT: Article 3 CROC
Best interest of the child.
NON-LEGAL RESPONSE: 2016 SMH Family Court ruling: violent father given sole custody of child
IMPACT:

ADOPTION
INTERNATIONAL LEGISLATION: Surrogacy Act 2008 (WA)
Commercial surrogacy not allowed interstate, however, commercial babies from other
countries/international companies allowed. Unregulated environment. Protection of birth mother,
commissioning parents and child is limited. Ineffective in regulating industry. A child must be
‘adopted’ from the surrogate mother before coming into Australia.
CASE: Baby Gammy 2014 Farnell, Li v Chanbua Family Court WA
Gammy was born in 2013 with Down syndrome and a congenital heart condition. He is a twin,
conceived as a result of a commercial surrogacy arrangement between an unidentified Australian
couple (the “genetic parents”) and Pattaramon Chanbua, a Thai national whose family was
struggling to pay off debts. Ms Chanbua paid 350,000 baht (A$11,700) to carry and bear ONE
 child.
According to Ms Chanbua, when it was discovered she was carrying twins, she was offered an
additional 70,000 Baht (A$2,000). But when doctors further discovered one of the babies had Down
syndrome, she was told to abort the affected twin. She refused on religious grounds and, after the
twins’ birth, the Australian couple left with only the healthy girl. Demonstrates ineffective nature
of legislation and issues surrounding international surrogacy. Commercial surrogacy not legal in
Australia- thus accessing international. Additionally, issues in regard to commercial surrogacy are
highlighted. Inconsistencies in law. Non-compliance exploit loopholes in the law. Thailand
(abortion) is illegal. Thai mother did not win, separation of twins ‘best interest of the child’.
STATISTIC: Surrogacy Australia 2011 Statistics
269 children born in Australia are products of international surrogates, this proving much more
popular than Australian surrogates, less than 50. Despite the rise in international surrogacy,
legislation continues to create difficulties with access.
INTERNATIONAL INSTRUMENT: Article 21 CROC
When children are adopted the first concern must be what is best for them. The same rules should
apply whether children are adopted in the country of their birth or if they are taken to live in
another country.
NON-LEGAL RESPONSE: Adoption HOPE NGO
Promotes adoption.
IMPACT:
SAME-SEX LEGISLATION: Adoption Of Children Legislation Amendment (Equality) Bill 2017 Nt
Last Australian state to allow same-sex couples to adopt. Nationally, after Northern Territory
change in legislation, same-sex couples were allowed to adopt in any state.
CASE: CJD NSW Supreme Court 2017
A court has allowed a four-year-old girl to be adopted by a same-sex couple despite her birth
parents' opposition on the basis of their Catholic faith. The girl was taken from her birth mother at
four days old due to the mother's long history of drug use and conviction for the manslaughter of
her infant son seven years earlier. Exhibits protection of the best interests of the child and the
changing nature of what is accepted as a family.
STATISTIC: Australian Institute of Family Studies
AIFS- About 11% of Australian gay men and 33% of lesbians have children, based on data from a
 recent lesbian, gay, bisexual and transgender (LGBT) community survey of 3,853 people.
INTERNATIONAL INSTRUMENT: ICCPR Article 26
NON-LEGAL RESPONSES: AHRC
Australian Human Rights Commission 2008 report “Same-Sex: Same Entitlements”. Outlined areas
of same-sex disadvantage and inequality, encourage law reform. All persons are equal before the
law and are entitled without any discrimination to the equal protection of the law. In this respect,
the law shall prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground.
IMPACT:
Australian legislation has successfully reflected changing moral and ethical standards within
Australia in response to the recognition of same-sex couples.
PROCESS LEGISLATION: Adoption Act NSW 2000
Chapter 4: Adoption process
Adoption by couple(cf AC Act ss 8, 19, 20, 21 (1) (c) (i) (a))
(1) Basic requirements Two persons who are a couple may, subject to this Act, adopt a child only
if: (a) both of them are resident or domiciled in the State, and (b) both of them are of good repute
and are fit and proper persons to fulfil the responsibilities of parents.
(2) Requirements for step parent The Court must not make an order in favour of a couple if one of
them is a step parent unless section 30 is complied with.
(3) Age requirements The Court must not make an adoption order in favour of a couple if neither
of them is a birth parent or relative of the child unless: (a) each of them is 21 or more years of age
and 18 or more years older than the child, or (b) the Court considers that in the particular
circumstances of the case it is desirable to make the order even though one or both of them do not
fulfil the age requirements.
(4) Length of relationship requirement The Court must not make an adoption order in favour of a
couple unless the couple have been living together for a continuous period of not less than 2 years
immediately before the application for the adoption order.
(5) The Court may make an adoption order in favour of a couple jointly even if one of them is a
birth parent, or they are the birth parents, of the child.
CASE: Diane Clemenston and Jonathon Papalia
For seven years, Diane Clementson and Jonathan Papalia were bogged down in paperwork as
 they tried in vain to adopt their daughter. Chantelle, 10, had been in their permanent care since
she was just 20 months old, but when the Kirribilli couple began the process to adopt her, they
had no idea how difficult it would be. Year after year they were forced to refile paperwork; they
had to fill in the adoption form three times. Months would pass when they would hear nothing
from the Department of Family and Community Services (FaCS).
Both of Chantelle's birth parents had died, so there were no barriers to the adoption except for a
process that was long, repetitive and difficult. Finally, after the family started to wonder whether
it would happen, a new taskforce stepped in to speed up the process and Chantelle was adopted
in September last year. The state government established the taskforce in June 2016 in a desperate
bid to clear FaCS' significant backlog in children being adopted from out-of-home care. After the
first year of the taskforce, NSW made some progress and attained its highest number of out-of-
home care adoption orders, 129 – up from 67 the previous financial year. It will also aim to
significantly reduce the time it takes to finalise adoptions, from an average of five years previously
to two years.
STATISTIC: Huffington Post
There were only 278 adoptions finalised in Australia from 2015-2016. Fact: there are about
46,000 children who are in and out of home care in Australia.
INTERNATIONAL INSTRUMENT: Article 21 CROC
When children are adopted the first concern must be what is best for them. The same rules should
apply whether children are adopted in the country of their birth or if they are taken to live in
another country.
NON-LEGAL RESPONSE: SMH 2019 'We wanted her to feel like a normal kid': the battle to adopt in
NSW.
IMPACT:

DIVORCE AND THE LEGAL CONSEQUENCES OF SEPARATION

PROPERTY LEGISLATION: THE FAMILY LAW ACT 1975 (CTH)
Property includes homes, bank accounts, companies and partnerships, shares, superannuation and
household goods.
CASE: C AND M 2006 FamCA
Married in 2002, bought land together to build a house. Upon divorce, husband received 92.5% of
 assets, court ordered wife gets a share of assess also.
STATISTIC:
INTERNATIONAL INSTRUMENT:
NON-LEGAL RESPONSE:
IMPACT:
CHILDREN LEGISLATION: Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011
(Cth)
Legislation recognises the need to protect children from harm and aims to improve the court’s
responses to family violence by providing better information concerning the existence or risk of
family violence. This allows for the court to make provisions for the child’s safety in future
parenting arrangements. In relation to divorce, decisions must be made with the best interest of
the child in mind, aiming to remove them from harmful environments.
CASE: Mr and Mrs Perri
A violent man was granted sole custody of his son because he was deemed to be more capable
than the boy's mother, who was rebuked for allegedly trying to turn the child against his father.
Among the reasons the Family Court gave for choosing the father to be sole carer is because he
was unemployed and, therefore, could "devote all his time to the care of the child", compared with
the mother, who worked part-time. In an extremely unusual case, Judge Stewart Austin found the
parents were so toxic towards each other that it was in the child's best interests to eliminate one
from his life entirely. Judge Austin chose in favour of the father, despite the man having numerous
domestic violence convictions, and said the mother's relationship with the boy, who was 10 at the
time of the judgment, could be "revived" later in life.Critics of the Family Court say the 2014
judgment, which is about to be challenged in court, is part of a disturbing trend whereby the court
sees a parent who is supposedly alienating the other parent as worse than an abusive parent.
The parents, given the pseudonyms Mr and Ms Perri, have been in and out of the Family Court
since their relationship ended in 2009. Each blames the other for the boy's distress. In 2011, at a
time Mr Perri was on an apprehended violence order and a good behaviour bond for domestic
violence offences, the court ordered the boy live with his father and have supervised visits with
his mother. The boy's behaviour deteriorated to the point where he was severely disturbed and
was self-harming, running away from school and hurting other children. In the most recent
judgment, Judge Austin decided to cut all the boy's contact with his mother, including letters and
 phone calls. He found that the boy's deterioration was due to the looming court case, rather than
the father's deficiency, and it would be exacerbated by disrupting his living situation. He said Ms
Perri's capacity to care for the child was inferior, partly because she worked part-time and did not
have a detailed plan for improving the boy's life. She was also reluctant to believe her son's claim
that his older half-sibling had sexually assaulted him, despite the police believing it was probably
true. She removed the half-sibling from their home, but believed the assault could not have
happened because the boy was away at the time of the alleged incident.
STATISTIC: SMH
In 2017, more than half of all divorce cases involved children.
INTERNATIONAL INSTRUMENT: Article 3 CROC
Best interest of the child.
NON-LEGAL RESPONSE: 2016 SMH Family Court ruling: violent father given sole custody of child
IMPACT:
FINANCE LEGISLATION: Family Law Act 1975 (Cth)
SECT 90D
Financial agreements after the divorce order is made (1) If: (a) after a divorce order is made in
relation to a marriage (whether it has taken effect or not), the parties to the former marriage make
a written agreement with respect to any of the matters mentioned in subsection (2); and (aa) at the
time of the making of the agreement, the parties to the former marriage are not the spouse parties
to any other binding agreement (whether made under this section or section 90B or 90C) with
respect to any of those matters; and (b) the agreement is expressed to be made under this section.
CASE: 14 Year Case
2019- Australia’s most expensive divorce wraps up after 14 years and $40 million in legal fees
Australia’s longest and messiest divorce has finally ended after 14 years, more than 700
documents and $40 million in legal fees. It was Australia’s longest, messiest and most expensive
divorce. The 14-year saga involved more than 700 documents, a “vast number” of hearings, 61
separate judgments, 16 law firms and more than $40 million in legal fees. But the case, akin to
Jarndyce and Jarndyce from Charles Dickens’ Bleak House, was finally brought to an end last
month with the Family Court refusing the wife’s bid to have the proceedings reopened so she
could attempt to retain her share in the family trusts and companies. The wealthy couple, who
cannot be identified for legal reasons, married in 1994 and separated in 2005, with litigation
 starting just months later. “They have been litigating about their marriage longer than they were
married,” the appeal judges noted in their decision. According to the Adelaide Advertiser, which
has been following the case since 2010, previous judges had described it as “somewhat farcical”
and a “cottage industry” for lawyers, with the woman, deemed a vexatious litigant in related
proceedings. The woman burned through “approximately 16 different firms of solicitors, eight
different senior counsel and 14 different junior counsel”. “Each in turn, either ceased to act or
alternatively, had their services terminated,” Justice Paul Cronin noted in an earlier decision.
STATISTIC:
INTERNATIONAL INSTRUMENT:
NON-LEGAL RESPONSE:
IMPACT:

DOMESTIC VIOLENCE
AVO LEGISLATION: FAMILY VIOLENCE PROTECTION ACT 2008 (VIC)
Part 4 of the legislation outlines the requirements in order for an IVO or AVO to be implemented
and further outlines the punishments for non-compliance, particularly jail sentence. However,
IVO’s are largely unenforceable and are often not complied with.
CASE: LUKE BATTY
In January 2013, Greg Anderson was arrested for threatening to murder Rosie Batty and for
breaching an IVO. He was later released on bail at Melbourne County Court. Since release form
bail, he was facing 11 criminal charges and was the subject of four arrest warrants due to breach of
bail conditions and failure to attend court. In February of 2014, Anderson arrived at Luke Batty’s,
Rosie’s son, cricket game. There, Anderson murdered Batty with a knife and when paramedics
arrived refused to let them provide treatment whilst holding a knife, he was killed on the scene.
STATISTIC:
2018 Crime Statistics agency- 14,806 criminal offences reported alongside bail breaches during that
12-month period, and of those the most common by far was contravening a family violence IVO.
BOSCAR- 2014 NSW 29070 domestic related assaults.
INTERNATIONAL INSTRUMENT: CROC Article 19
Governments should ensure that children are properly cared for and protect them from violence,
abuse and neglect by their parents, or anyone else who looks after them.
 NON-LEGAL RESPONSE:
In 2014, Rosie Batty established the Luke Batty Foundation to assist women and children affected
by domestic violence. Batty's story was instrumental in the establishment in 2015 of the Royal
Commission into Family Violence in her home state of Victoria. It was tabled in Parliament on 30
March 2016. The report is a culmination of a 13-month inquiry into how to effectively prevent
family violence, improve early intervention, support victims, make perpetrators accountable,
better coordinate community and government response, and evaluate and measure strategies,
frameworks, policies, programs and services. The report includes eight volumes and is founded
on 227 recommendations made by the Commission to improve, guide and oversee a long-term
reform program that deals with family violence. This includes the establishment of the Family
Violence Protection Act, which provides a detailed definition of family violence, the relationships
in which it can arise, and a reinforcement of the sound objectives and principles of the Act.
IMPACT:
The ineffectiveness of both Bail legislation and A/IVO’s in Victoria is exhibited. This consequently
prevents adequate protection of victims, offenders and society and fails to reflect changing
attitudes toward domestic violence. As Bail legislation in Victoria continues to be amended even
after non-legal and legal pressures, it is evident that the legislation is ineffective and unable to
satisfy the changing standards of society.
CHILDREN LEGISLATION: CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 NSW
Outlines actions to be taken in the event of domestic violence occurring. Particularly, it outlined
AVOs. However, AVOs are often ineffective and in some instances, attempts to obtain one are
unsuccessful.
CASE: Olga Family
Jack Edwards, 15, and Jennifer Edwards, 13, were killed just before 5.20 pm in June 2018 at their
West Pennant Hills home in what police say was a "planned attack" by John Edwards, a 68-year-
old financial services worker. Police say the teens were at home alone and attempted to hide in a
bedroom as their father barged in the house carrying the handguns. After an overnight search,
police discovered Edwards' body at his home in Normanhurst, a suburb on Sydney's Upper North
Shore, about 5 kilometres from where the children were killed. Two guns, described as "powerful
handguns" by police, were also found at the property.
The children's 36-year-old mother Olga returned to her home shortly after police arrived. Police
 said Edwards had been involved in custody hearings over the two children during the past two
years. Since the shooting, questions have been also been raised over Edwards' ability access to
firearms, after it emerged he was rejected from gun clubs and police confirmed he had a violent
history. Emeritus professor of public health at Sydney University Simon Chapman said
Thursday's tragedy should force authorities to talk about gun reform to stop domestic violence
incidents. "The incident that we've just seen, and the one in Margaret River, Davidson and Wagga
a few years ago, all domestic killings, these should be the Port Arthur moments for gun reform in
this respect," he said. He said in Canada, for example, ex-spouses are interviewed by licencing
authorities on whether they should have access to guns.
STATISTIC: Australian Institute of Criminology 2017
On average, 25 children are killed by a parent
INTERNATIONAL INSTRUMENT: CROC Article 19
Governments should ensure that children are properly cared for and protect them from violence,
abuse and neglect by their parents, or anyone else who looks after them.
NON-LEGAL RESPONSE:
IMPACT:
CHILDREN LEGISLATION: Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011
(Cth)
Legislation recognises the need to protect children from harm and aims to improve the court’s
responses to family violence by providing better information concerning the existence or risk of
family violence. This allows for the court to make provisions for the child’s safety in future
parenting arrangements. In relation to divorce, decisions must be made with the best interest of
the child in mind, aiming to remove them from harmful environments.
CASE: Mr and Mrs Perri
A violent man was granted sole custody of his son because he was deemed to be more capable
than the boy's mother, who was rebuked for allegedly trying to turn the child against his father.
Among the reasons the Family Court gave for choosing the father to be sole carer is because he
was unemployed and, therefore, could "devote all his time to the care of the child", compared with
the mother, who worked part-time. In an extremely unusual case, Judge Stewart Austin found the
parents were so toxic towards each other that it was in the child's best interests to eliminate one
from his life entirely. Judge Austin chose in favour of the father, despite the man having numerous
 domestic violence convictions, and said the mother's relationship with the boy, who was 10 at the
time of the judgment, could be "revived" later in life.Critics of the Family Court say the 2014
judgment, which is about to be challenged in court, is part of a disturbing trend whereby the court
sees a parent who is supposedly alienating the other parent as worse than an abusive parent.
The parents, given the pseudonyms Mr and Ms Perri, have been in and out of the Family Court
since their relationship ended in 2009. Each blames the other for the boy's distress. In 2011, at a
time Mr Perri was on an apprehended violence order and a good behaviour bond for domestic
violence offences, the court ordered the boy live with his father and have supervised visits with
his mother. The boy's behaviour deteriorated to the point where he was severely disturbed and
was self-harming, running away from school and hurting other children. In the most recent
judgment, Judge Austin decided to cut all the boy's contact with his mother, including letters and
phone calls. He found that the boy's deterioration was due to the looming court case, rather than
the father's deficiency, and it would be exacerbated by disrupting his living situation. He said Ms
Perri's capacity to care for the child was inferior, partly because she worked part-time and did not
have a detailed plan for improving the boy's life. She was also reluctant to believe her son's claim
that his older half-sibling had sexually assaulted him, despite the police believing it was probably
true. She removed the half-sibling from their home, but believed the assault could not have
happened because the boy was away at the time of the alleged incident.
STATISTIC: SMH
In 2017, more than half of all divorce cases involved children.
INTERNATIONAL INSTRUMENT: Article 3 CROC
Best interest of the child.
NON-LEGAL RESPONSE: 2016 SMH Family Court ruling: violent father given sole custody of child
IMPACT:

SURROGACY AND BIRTH TECHNOLOGIES

INTERNATIONAL LEGISLATION: Surrogacy Act 2008 (WA)
SURROGACY Commercial surrogacy not allowed interstate, however, commercial babies from other
countries/international companies allowed. Unregulated environment. Protection of birth mother,
commissioning parents and child is limited. Ineffective in regulating industry.
CASE: Baby Gammy 2014 Farnell, Li v Chanbua Family Court WA
 Gammy was born in 2013 with Down syndrome and a congenital heart condition. He is a twin,
conceived as a result of a commercial surrogacy arrangement between an unidentified Australian
couple (the “genetic parents”) and Pattaramon Chanbua, a Thai national whose family was
struggling to pay off debts. Ms Chanbua paid 350,000 baht (A$11,700) to carry and bear ONE
child.
According to Ms Chanbua, when it was discovered she was carrying twins, she was offered an
additional 70,000 Baht (A$2,000). But when doctors further discovered one of the babies had Down
syndrome, she was told to abort the affected twin. She refused on religious grounds and, after the
twins’ birth, the Australian couple left with only the healthy girl. Demonstrates ineffective nature
of legislation and issues surrounding international surrogacy. Commercial surrogacy not legal in
Australia- thus accessing international. Additionally, issues in regard to commercial surrogacy are
highlighted. Inconsistencies in law. Non-compliance exploit loopholes in the law. Thailand
(abortion) is illegal. Thai mother did not win, separation of twins ‘best interest of the child’.
STATISTIC: Surrogacy Australia 2011 Statistics
269 children born in Australia are products of international surrogates, this proving much more
popular than Australian surrogates, less than 50. Despite the rise in international surrogacy,
legislation continues to create difficulties with access.
INTERNATIONAL INSTRUMENT:
NON-LEGAL RESPONSE:
IMPACT:
IVF LEGISLATION: Status of Children Act 1978 (QLD) Subdivision 2A and 3
Women with same sex defacto permitted to access Assisted Reproductive Technology (especially
IVF). However, ART businesses are permitted to discriminate against same-sex couples and thus
access to children is restricted for same-sex couples. This limits the extent of progress within the
ART industry, specifically evident in the optional exclusion of same-sex couples. Despite social
change and reforms which include and recognise the legitimacy of same-sex families and couples,
state legislation continues to disregard this by allowing for discrimination (Rule of Law, division
of powers inconsistent).
CASE: RE: J & M 2004
Ms F and Ms B were in a same sex relationship since 1999. Ms F gave birth to twins, J and M, in
2003 after IVF treatment. The couple separated and sought uncontested court orders of joint
 responsibility. The Federal Magistrates Court felt that such orders should be granted in the “best
interests of the child”. Meaningful relationships and best interest of the child become priority.
Recognises validity of same-sex parentage. Influencing social change and acceptance. However, in
some instances of same-sex IVF access, discrimination is allowed, and they can be denied access to
vital services.
STATISTIC: European Society of Human Reproduction and Embryology 2018 Report
Since 1978, the first IVF birth, there are over 8 million IVF babies, with this ART service becoming
increasingly popular. Demonstrates the increase of assisted reproductive technologies being used
internationally.
INTERNATIONAL INSTRUMENT:
NON-LEGAL RESPONSE: ABC, 2017 “Gay Couples Denied Access to IVF…”
Same-sex discrimination revealed to be additionally permitted in the Northern Territory.
Legislative inconsistencies with same-sex access to children and birth technologies.
IMPACT:
PRESUMPTION OF LEGISLATION: Status of Children Act 1996 (NSW) Section 14
PARENTAGE (3) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure
using an ovum obtained from another woman, that other woman is presumed not to be the mother of any
child born as a result of the pregnancy. Legislation reveals the priority of the birth mother in all
instances, this removes consideration of ‘best interest of the child’ and ‘meaningful relationships’,
as if these have already been established they can be disregarded.
CASE: RE: EVELYN 1998
Mrs S offered to be a surrogate to Mr and Mrs Q. Baby Evelyn was born in 1996. A year later Mrs S
went to court over custody demanding custody of the child, this was granted and despite the Q’s
appeal attempts, the baby was ordered to be transferred at 18 months of age. Precedent case.
Determined that the birth mother will ALWAYS win in circumstances of conflict. This disregards
the best interest of the child and the establishments of meaningful relationships, as Evelyn had
been with the receiving parents for two years prior and had a distinguished relationship with their
adopted sibling.
STATISTIC: Australian and New Zealand Assisted Reproduction Database 2013
334 registered babies through international and national surrogacy in Australia. Despite cases of
surrogate children increasing, legislation and cases continues to fail to consider the best interest of
 the child and disregard the need for meaningful relationships. ART 3 CROC (best interests of the
child), signed, ratified and partially enacted.
INTERNATIONAL INSTRUMENT: CROC ARTICLE 3
‘Best Interests of the Child’
NON-LEGAL RESPONSE:
IMPACT:

RECOGNITION OF SAME-SEX COUPLES

IVF ACCESS LEGISLATION: Status of Children Act 1978 (QLD) Subdivision 2A and 3
Women with same sex defacto permitted to access Assisted Reproductive Technology (especially
IVF). However, ART businesses are permitted to discriminate against same-sex couples and thus
access to children is restricted for same-sex couples. This limits the extent of progress within the
ART industry, specifically evident in the optional exclusion of same-sex couples. Despite social
change and reforms which include and recognise the legitimacy of same-sex families and couples,
state legislation continues to disregard this by allowing for discrimination (Rule of Law, division
of powers inconsistent).
CASE: RE: J & M 2004
Ms F and Ms B were in a same sex relationship since 1999. Ms F gave birth to twins, J and M, in
2003 after IVF treatment. The couple separated and sought uncontested court orders of joint
responsibility. The Federal Magistrates Court felt that such orders should be granted in the “best
interests of the child”. Meaningful relationships and best interest of the child become priority.
Recognises validity of same-sex parentage. Influencing social change and acceptance. However, in
some instances of same-sex IVF access, discrimination is allowed, and they can be denied access to
vital services.
STATISTIC:
INTERNATIONAL INSTRUMENT:
NON-LEGAL RESPONSE: ABC, 2017 “Gay Couples Denied Access to IVF…”
Same-sex discrimination revealed to be additionally permitted in the Northern Territory.
Legislative inconsistencies with same-sex access to children and birth technologies.
IMPACT:
MARRIAGE LEGISLATION: Marriage Amendment (Definition and Religious Freedoms) Act 2017
 Legalises same-sex marriage in Australia by amending the Marriage Act 1961 to allow marriage
between two persons of marriageable age, regardless of their gender. Term consent.
CASE: Grace Abrams (2007)
Grace Abrams married her female partner using her male birth certificate. In 2005, she underwent
surgery to change sex in Thailand. She was then subsequently denied a new passport as a female
by Foreign Affairs Minister Alexander Downer. A direct violation of the Australian Passports Act
2005 (Cth) which states that every Australian is entitled to a passport.
That decision has now been overturned by the Administrative Appeals Tribunal. She can now
have her new gender recorded on her passport as well as continuing to have her marriage legally
recognised. First legally recognised same-sex marriage in Australia.
STATISTIC: Births, Deaths and Marriages Statistics 2018
During the first 6 months of same-sex marriage being legalised, a total of 2500 marriage took place.
INTERNATIONAL INSTRUMENT:
NON-LEGAL RESPONSE:
IMPACT:
ECONOMIC EQUALITY LEGISLATION: Same-Sex Relations (Equal Treatment in Commonwealth Laws- General Law Reform)
(HEALTH-CARE) Act 2008 (Cth)
Radical, federal law reform. Removed areas of discrimination from a range of laws and programs
(Health Insurance Act 1973 (Cth)) by amending or extending legislative definitions such as ‘de facto
partner’, ‘child’, ‘parent’, ‘couple’ and ‘family’ to include same-sex relationships. Provided same-
sex couples with equal rights and abolished discrimination in regard to several fields, such as
access to health care. Also altered the definitions of several terms to include same-sex
relationships, this changing the nature of parental responsibility as well as including and
recognising the legitimacy of same-sex relationships and families.
CASE: Hope & Brown v NIB Health Funds 1994
Recognition of same-sex couples for family health insurance. Court ruled it was discrimination.
Despite there being no marriage, they were in a state of financial dependency, with a child, and
sharing mortgages, funds etc. Changes in definition of family (parental responsibility). Necessity
of marriage to be a family challenged in addition to circumstances of the gender of parents being
altered. Precedent. However, no formal change/radical reform until 2008. Several minor reforms,
however, continued following this case.
 STATISTIC: ICCPR Article 26
INTERNATIONAL INSTRUMENT:
NON-LEGAL RESPONSE: Australian Human Rights Commission 2008 report “Same-Sex: Same
Entitlements”
Outlined areas of same-sex disadvantage and inequality, encourage law reform. All persons are
equal before the law and are entitled without any discrimination to the equal protection of the law.
In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground. ICCPR Article 26. Impetus for change.
Led to huge successful and important reforms. Article based on previous legislative disregard for
article 26 of the ICCPR, which states that everyone is equal in the eyes of the law (RULE OF LAW
TOO) and should be free from legal discrimination. This report highlighted legislative
inconsistencies and issues, ultimately leading to reforms listed above.
IMPACT:

CARE AND PROTECTION OF CHILDREN

NEGLECT LEGISLATION: Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 NSW
An Act to amend the Children and Young Persons (Care and Protection) Act 1998 and other
legislation to give effect to recommendations of the Special Commission of Inquiry into Child
Protection Services in NSW; and for other purposes. This Act was part of the Government's
response to the 2008 Report from a Special Commission of Inquiry led by Justice Wood. This
legislation raised the threshold for statutory intervention in child reporting to 'risk of significant
harm', to clarify the working of the Out of Home Care (OOHC) system to focus on the children
most at need of care, and to make changes to increase the sharing of information between
Government agencies. Occurred in response to the Ebony case. Further a response to ‘Keeping
them Safe’ 2008 report. Addressed issues surrounding neglect and implemented measures
surrounding reporting of children in harmful situations. Attempts to outline alternative options
that will protect the child by placing them into better care. However- huge issues with non-
compliance SEE STAT.
CASE: Re: Ebony. R v BW & SW (No 3)
The offenders, SW and BW were the parents of a seven-year-old girl known as Ebony. She had
been diagnosed with autism and died in November 2007 as a result of starvation and neglect over
 a twenty-month period. Several doctors who gave evidence at the trial of her parents testified that
Ebony suffered from the most severe case of malnutrition they had ever seen. After a five-week
trial, the girl’s mother SW was found guilty of her murder and sentenced to life imprisonment and
the girl’s father BW was found guilty of manslaughter and sentenced to 16 years with a non-parole
period of 12 years. This case highlighted the issues and ineffectiveness associated with the existing
legislation, specifically the Children and Young Persons (Care and Protection) Act 1998. This case
led to many public demands for law reform and attention to be drawn to the wellbeing of children
and their best interest. This ultimately resulted in the ‘Keeping Them Safe’ 2008 Report, led by
Justice Wood. Basis of HAGUE being signed, ratified and partially enacted- push for efficiency.
STATISTIC: Australian Institute of Family Studies
In 2015-2016 there was a total of 355, 935 notifications made in regard to child neglect and violence
in Australia. This number having increased by over 100000 since 2011-2012 statistics. Demonstrate
inefficiency of legislation, thus limited justice being applied despite legislative reform and
amendments. Social non-compliance.
INTERNATIONAL INSTRUMENT:
NON-LEGAL RESPONSE:
IMPACT:
PRESUMPTION OF LEGISLATION: Status of Children Act 1996 (NSW) Section 14
PARENTAGE (3) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure
using an ovum obtained from another woman, that other woman is presumed not to be the mother of any
child born as a result of the pregnancy. Legislation reveals the priority of the birth mother in all
instances, this removes consideration of ‘best interest of the child’ and ‘meaningful relationships’,
as if these have already been established they can be disregarded.
CASE: RE: EVELYN 1998
Mrs S offered to be a surrogate to Mr and Mrs Q. Baby Evelyn was born in 1996. A year later Mrs S
went to court over custody demanding custody of the child, this was granted and despite the Q’s
appeal attempts, the baby was ordered to be transferred at 18 months of age. Precedent case.
Determined that the birth mother will ALWAYS win in circumstances of conflict. This disregards
the best interest of the child and the establishments of meaningful relationships, as Evelyn had
been with the receiving parents for two years prior and had a distinguished relationship with their
adopted sibling.
 STATISTIC: Australian and New Zealand Assisted Reproduction Database 2013
334 registered babies through international and national surrogacy in Australia. Despite cases of
surrogate children increasing, legislation and cases continues to fail to consider the best interest of
the child and disregard the need for meaningful relationships. ART 3 CROC (best interests of the
child), signed, ratified and partially enacted.
INTERNATIONAL INSTRUMENT: CROC ARTICLE 3
‘Best Interests of the Child’
NON-LEGAL RESPONSE:
IMPACT:
PARENS PATRIE LEGISLATION: Children and Young Persons (Care and Protections) Act 1998 (NSW)
Parens Patrie- The monarch, or any other authority, regarded as the legal protector of citizens
unable to protect themselves. S 174 outlines emergency medical treatment for young persons and
ability of courts to override refusal.
CASE: 2013 X v Sydney Children’s Hospital
X had been treated for Hodgkin’s Lymphoma with chemo. After long-term unsuccess, the doctor
called for a blood transfusion. X and his family were Jehovah’s witnesses and refused treatment on
religious grounds. Court case results with SCH being granted to provide treatment until X was 18.
X appealed this; however, the courts dismissed the appeal.
STATISTIC:
INTERNATIONAL INSTRUMENT:
NON-LEGAL RESPONSE:
IMPACT:

CHANGING NATURE OF PARENTAL RESPONSIBILITY

SAME-SEX ADOPTION LEGISLATION: Adoption Of Children Legislation Amendment (Equality) Bill 2017 Nt
Last Australian state to allow same-sex couples to adopt. Nationally, after Northern Territory
change in legislation, same-sex couples were allowed to adopt in any state.
CASE: CJD NSW Supreme Court 2017
A court has allowed a four-year-old girl to be adopted by a same-sex couple despite her birth
parents' opposition on the basis of their Catholic faith. The girl was taken from her birth mother at
four days old due to the mother's long history of drug use and conviction for the manslaughter of
 her infant son seven years earlier. Exhibits protection of the best interests of the child and the
changing nature of what is accepted as a family.
STATISTIC: Australian Institute of Family Studies
AIFS- About 11% of Australian gay men and 33% of lesbians have children, based on data from a
recent lesbian, gay, bisexual and transgender (LGBT) community survey of 3,853 people.
INTERNATIONAL INSTRUMENT: ICCPR Article 26
NON-LEGAL RESPONSES: AHRC
Australian Human Rights Commission 2008 report “Same-Sex: Same Entitlements”. Outlined areas
of same-sex disadvantage and inequality, encourage law reform. All persons are equal before the
law and are entitled without any discrimination to the equal protection of the law. In this respect,
the law shall prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground.
IMPACT:
Australian legislation has successfully reflected changing moral and ethical standards within
Australia in response to the recognition of same-sex couples.
SOLE PARENTS LEGISLATION: Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011
(Cth)
Legislation recognises the need to protect children from harm and aims to improve the court’s
responses to family violence by providing better information concerning the existence or risk of
family violence. This allows for the court to make provisions for the child’s safety in future
parenting arrangements. In relation to divorce, decisions must be made with the best interest of
the child in mind, aiming to remove them from harmful environments.
CASE: Mr and Mrs Perri
A violent man was granted sole custody of his son because he was deemed to be more capable
than the boy's mother, who was rebuked for allegedly trying to turn the child against his father.
Among the reasons the Family Court gave for choosing the father to be sole carer is because he
was unemployed and, therefore, could "devote all his time to the care of the child", compared with
the mother, who worked part-time. In an extremely unusual case, Judge Stewart Austin found the
parents were so toxic towards each other that it was in the child's best interests to eliminate one
from his life entirely. Judge Austin chose in favour of the father, despite the man having numerous
domestic violence convictions, and said the mother's relationship with the boy, who was 10 at the
 time of the judgment, could be "revived" later in life.Critics of the Family Court say the 2014
judgment, which is about to be challenged in court, is part of a disturbing trend whereby the court
sees a parent who is supposedly alienating the other parent as worse than an abusive parent.
The parents, given the pseudonyms Mr and Ms Perri, have been in and out of the Family Court
since their relationship ended in 2009. Each blames the other for the boy's distress. In 2011, at a
time Mr Perri was on an apprehended violence order and a good behaviour bond for domestic
violence offences, the court ordered the boy live with his father and have supervised visits with
his mother. The boy's behaviour deteriorated to the point where he was severely disturbed and
was self-harming, running away from school and hurting other children. In the most recent
judgment, Judge Austin decided to cut all the boy's contact with his mother, including letters and
phone calls. He found that the boy's deterioration was due to the looming court case, rather than
the father's deficiency, and it would be exacerbated by disrupting his living situation. He said Ms
Perri's capacity to care for the child was inferior, partly because she worked part-time and did not
have a detailed plan for improving the boy's life. She was also reluctant to believe her son's claim
that his older half-sibling had sexually assaulted him, despite the police believing it was probably
true. She removed the half-sibling from their home, but believed the assault could not have
happened because the boy was away at the time of the alleged incident.
STATISTIC: SMH
In 2017, more than half of all divorce cases involved children.
INTERNATIONAL INSTRUMENT: Article 3 CROC
Best interest of the child.
NON-LEGAL RESPONSE: 2016 SMH Family Court ruling: violent father given sole custody of child
IMPACT:
CARE AND LEGISLATION: Status of Children Act 1996 (NSW) Section 14
PROTECTION OF (3) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure
CHILDREN using an ovum obtained from another woman, that other woman is presumed not to be the mother of any
child born as a result of the pregnancy. Legislation reveals the priority of the birth mother in all
instances, this removes consideration of ‘best interest of the child’ and ‘meaningful relationships’,
as if these have already been established they can be disregarded.
CASE: RE: EVELYN 1998
Mrs S offered to be a surrogate to Mr and Mrs Q. Baby Evelyn was born in 1996. A year later Mrs S
went to court over custody demanding custody of the child, this was granted and despite the Q’s
appeal attempts, the baby was ordered to be transferred at 18 months of age. Precedent case.
Determined that the birth mother will ALWAYS win in circumstances of conflict. This disregards
the best interest of the child and the establishments of meaningful relationships, as Evelyn had
been with the receiving parents for two years prior and had a distinguished relationship with their
adopted sibling.
STATISTIC: Australian and New Zealand Assisted Reproduction Database 2013
334 registered babies through international and national surrogacy in Australia. Despite cases of
surrogate children increasing, legislation and cases continues to fail to consider the best interest of
the child and disregard the need for meaningful relationships. ART 3 CROC (best interests of the
child), signed, ratified and partially enacted.
INTERNATIONAL INSTRUMENT: CROC ARTICLE 3
‘Best Interests of the Child’
NON-LEGAL RESPONSE:
IMPACT: